Oregon Natural Desert Ass'n v. Cain et al

Cross Motion for Summary Judgment and Memorandum in Support/In Response to Plaintiff's Motion for Summary Judgment.

D. Or.June 2, 2017

BILLY J. WILLIAMS, OSB # 901366 United States Attorney District of Oregon SEAN E. MARTIN, OSB # 054338 Assistant United States Attorney 1000 SW Third Avenue, Suite 600 Portland, OR 97204 Telephone: (503) 727-1010 sean.martin@usdoj.gov Attorneys for Defendants UNITED STATES DISTRICT COURT DISTRICT OF OREGON OREGON NATURAL DESERT ASS’N, Plaintiff, v. BRENDAN CAIN, Burns District Manager, Bureau of Land Management, et al., Defendants, and HARNEY COUNTY, Defendant-Intervenor. Case No. 3:09-cv-00369-PK DEFENDANTS’ CROSS- MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 1 of 75 i TABLE OF CONTENTS Table of Authorities ............................................................................................ iv Glossary of Acronyms ....................................................................................... viii Key to Administrative Record Prefixes ............................................................. ix MOTION ................................................................................................................1 MEMORANDUM ..................................................................................................1 INTRODUCTION .................................................................................................1 FACTUAL BACKGROUND .................................................................................3 I. The Steens CMPA and BLM’s initial resource management efforts ......................................................................................................3 II. BLM’s Steens Mountain Travel Management Plan (“TMP”) and the importance of the CMPA route network .................................5 III. Plaintiff’s appeal of the 2007 TMP decision to IBLA and the subsequent proceedings in this Court ............................................... 10 IV. IBLA’s September 2014 remand ruling ............................................. 11 V. BLM’s April 2015 CRP decision ......................................................... 12 JUDICIAL REVIEW UNDER THE APA ......................................................... 13 ARGUMENT ...................................................................................................... 14 I. IBLA’s ruling on BLM’s route-inventory methodology was neither arbitrary nor capricious ......................................................... 14 A. IBLA’s ruling is well-supported .................................................... 15 II. The CRP’s analysis of the limited routes at issue was neither arbitrary nor capricious ...................................................................... 24 Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 2 of 75 ii III. Defendants did not violate the Steens Act ........................................ 26 A. Legal background ........................................................................... 26 B. IBLA’s 2014 remand ruling rationally interpreted and applied the Steens Act to the TMP ............................................... 27 1. IBLA reached a permissible interpretation that the Steens Act allows motorized travel on roads and trails that were in existence at the time of the Act’s enactment .................. 28 2. IBLA’s ruling was rational that BLM did not violate the Steens Act by authorizing motorized travel on the ATV routes identified in the TMP decision ........................................... 31 C. BLM’s 2015 CRP decision does not violate the Steens Act with regard to ATV routes ............................................................. 32 IV. Defendants did not violate FLPMA ................................................... 32 A. Legal background ........................................................................... 32 B. IBLA’s 2014 remand ruling rationally interpreted and applied FLPMA to the TMP .......................................................... 33 C. BLM’s 2015 CRP decision did not violate FLPMA’s non- impairment provision .................................................................... 37 D. Plaintiff’s FLPMA “minimization criteria” argument fails against the 2007 TMP decision ..................................................... 39 E. Plaintiff’s FLPMA “minimization criteria” argument fails against the 2015 CRP decision ...................................................... 41 V. IBLA’s 2014 ruling did not violate the Wilderness Act/Steens Act with regard to wilderness impairment ....................................... 42 A. Legal background ........................................................................... 42 Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 3 of 75 iii B. IBLA’s ruling was not unlawful under the Wilderness Act /Steens Act ...................................................................................... 44 VI. Defendants did not violate NEPA ...................................................... 49 A. Legal background ........................................................................... 49 B. IBLA reached a rational ruling that BLM was neither arbitrary nor capricious in finding that an EIS was not required for the TMP under NEPA ............................................... 50 1. IBLA’s ruling documented why there was a rational basis for BLM’s TMP finding that the unique characteristics of the geographic area did not require an EIS........................................ 51 2. IBLA’s ruling documented there was a rational basis for BLM’s TMP findings that there were no highly controversial or highly uncertain environmental effects requiring an EIS ...... 54 C. Plaintiff fails to establish that BLM was arbitrary and capricious in finding that an EIS was not required for the CRP under NEPA .......................................................................... 58 D. IBLA properly found in 2014 that BLM adequately assessed the environmental baseline under NEPA .................................... 60 E. BLM supplied an accurate environmental baseline underlying the 2015 CRP decision ................................................ 62 CONCLUSION ................................................................................................... 63 CERTIFICATE OF COMPLIANCE .................................................................. 65 Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 4 of 75 iv TABLE OF AUTHORITIES CASES Anderson v. Evans, 371 F.3d 475 (9th Cir. 2004) ............................................. 54 Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172 (9th Cir. 2008) ............................................................................ 49 Ctr. for Envtl. Law & Policy v. U.S. Bureau of Reclamation, 655 F.3d 1000 (9th Cir. 2011) ............................................................................ 13 El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 959 F.2d 742 (9th Cir. 1991) ........................................................................ 15, 25 Ft. Funston Dog Walkers v. Babbitt, 96 F. Supp. 2d 1021 (N.D. Cal. 2000) .................................................................................................. 55 High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630 (9th Cir. 2004) ............. 44 Humane Society of the United States v. Locke, 626 F.3d 1040 (9th Cir. 2010) .................................................................................................... 56 Kleppe v. Sierra Club, 427 U.S. 390 (1976) ...................................................... 49 Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (1989) .......................... 49 Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) .............................................................................................. 13 Mount Royal Joint Venture v. Kempthorne, 477 F.3d 745 (D.C. Cir. 2007) .................................................................................................. 33 National Marine Fisheries Service, 647 F. Supp. 2d 1221 (D. Or. 2009) ........ 54 Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 5 of 75 v National Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722 (9th Cir. 2001) .................................................................................................... 57 Native Ecosystems Council v. Forest Service, 428 F.3d 1233 (9th Cir. 2005) .............................................................................................. 55, 56 North Carolina v. Federal Aviation Admin., 957 F.2d 1125 (4th Cir. 1992) .................................................................................................... 55 Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004) ............................. 41 Ocean Advocates v. Corps of Engineers, 402 F.3d 846 (9th Cir. 2005)............ 50 Olenec v. National Marine Fisheries Service, 765 F. Supp. 2d 1277 (D. Or. 2011) ....................................................................................................... 56 Or. Nat. Res. Council v. Thomas, 92 F.3d 792 (9th Cir.1996) ......................... 16 Oregon Natural Desert Ass’n v. Shuford, No. 06-242-AA, 2007 WL 1695162 (D. Or. June 8, 2007) ............................................................. 5 Preferred Risk Mut. Ins. Co. v. United States, 86 F.3d 789 (8th Cir. 1996) .................................................................................................... 16 Robertson v. Methow Vally Citizen Council, 490 U.S. 332 (1989) ................... 49 San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581 (9th Cir. 2014) .................................................................................................... 13 STATUTES 16 U.S.C. § 1131(a) ...................................................................................... 42, 43 16 U.S.C. § 1133(c) ............................................................................................. 43 Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 6 of 75 vi 16 U.S.C. § 460nnn .............................................................................................. 3 16 U.S.C. § 460nnn-11 ....................................................................................... 26 16 U.S.C. § 460nnn-12 ......................................................................................... 7 16 U.S.C. § 460nnn-12(b)(3) .............................................................................. 26 16 U.S.C. § 460nnn-21(b) ..................................................................................... 3 16 U.S.C. § 460nnn-22(b)(1) ........................................................................ 27, 28 16 U.S.C. § 460nnn-22(d)(1) ........................................................................ 31, 32 16 U.S.C. § 460nnn-22(e) ................................................................................... 38 16 U.S.C. § 460nnn-23 ......................................................................................... 8 16 U.S.C. § 460nnn-61 ......................................................................................... 3 16 U.S.C. § 460nnn-62(a) ............................................................................. 43, 46 16 U.S.C. § 460nnn-64(b) ................................................................................... 33 42 U.S.C. § 4321 ................................................................................................. 49 42 U.S.C. § 4332(2)(E) ....................................................................................... 61 42 U.S.C. § 4332(C) ............................................................................................ 49 43 U.S.C. § 1701(a) ............................................................................................ 32 43 U.S.C. § 1701-1784 ........................................................................................ 32 Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 7 of 75 vii 43 U.S.C. § 1782 ........................................................................................... 19, 30 43 U.S.C. § 1782(c) ....................................................................................... 33, 35 REGULATIONS 40 C.F.R. § 1501.4 .............................................................................................. 49 40 C.F.R. § 1508.9(a)(1) ..................................................................................... 49 40 C.F.R. § 1508.9 .............................................................................................. 61 40 C.F.R. § 1508.13 ............................................................................................ 50 43 C.F.R. § 8342.1 ........................................................................................ 41, 42 Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 8 of 75 viii GLOSSARY OF ACRONYMS APA Administrative Procedure Act ATV All-Terrain Vehicle BLM U.S. Bureau of Land Management CMPA Steens Cooperative Management and Protection Area CRP Steens Comprehensive Recreation Plan EA Environmental Assessment EIS Environmental Impact Statement FLPMA Federal Land Policy and Management Act IBLA Interior Board of Land Appeals NEPA National Environmental Policy Act ONDA Oregon Natural Desert Association (Plaintiff) RMP Resource Management Plan TMP Travel Management Plan TP Transportation Plan WSA Wilderness Study Area Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 9 of 75 ix KEY TO ADMINISTRATIVE RECORD PREFIXES AR ___ Administrative Record for 2007 TMP and 2009 IBLA ruling (filed September 4, 2009) SAR ____ Supplement to Administrative Record for 2007 TMP and 2009 IBLA ruling (filed April 4, 2010, and July 2, 2010) RAR___ Remand Administrative Record for 2014 IBLA ruling (filed January 14, 2015) CRP AR ___ BLM Administrative Record for 2015 CRP decision (filed September 24, 2015) SUPP AR ____ Supplemental and Corrected Supplemental BLM Administrative Record for 2015 CRP decision (filed January 31, 2017 and February 16, 2017) Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 10 of 75 Page 1 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK MOTION Defendants file this cross-motion for summary judgment regarding Plaintiff’s claims, as explained in the following memorandum and as supported by the administrative records. Pursuant to LR 7-1(a), the parties conferred telephonically but were not able to resolve the need for this cross- motion. MEMORANDUM INTRODUCTION Two distinct final agency actions remain before this Court under the Administrative Procedure Act (“APA”). After formal administrative proceedings on remand from this Court, the Interior Board of Land Appeals (“IBLA”) in September 2014 issued a detailed ruling resolving the remanded issues in BLM’s favor with regard to the Steens Travel Management Plan (“TMP”) decision. Then, in April 2015, BLM separately completed its Steens Comprehensive Recreation Plan (“CRP”) decision. In its 2014 ruling, IBLA documented how BLM complied with the Steens Act, FLPMA, Wilderness Act, and NEPA. IBLA also addressed this Court’s concerns about BLM’s route-inventory methodology. In its 2015 CRP decision, BLM conducted a route-by-route review in deciding whether to close Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 11 of 75 Page 2 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK or leave open certain existing routes, and it complied with the applicable statutory requirements. This Court should be wary of Plaintiff’s attempt to evade Chevron deference to IBLA’s 2014 ruling and convert judicial review into a free- ranging, de novo combined review of the 2007 TMP decision and 2015 CRP decision. This Court already ruled that the 2007 TMP decision is no longer a final agency action under review here. ECF 82. Plaintiff also seeks to impose its own standard for route review and use that is simply impractical on far-flung public lands. This case concerns whether routes over public lands for access for recreation, livestock grazing, firefighting, ecological restoration, wild horse management, and other purposes cease to exist when they are not always used or maintained frequently enough to remove vegetation. This case also concerns whether an agency must allocate limited resources to ground-photographing every route to prove its existence, despite other means of evaluating routes. The answer to both questions is no. Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 12 of 75 Page 3 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK FACTUAL BACKGROUND I. The Steens CMPA and BLM’s initial resource management efforts. The BLM Burns District Office manages more 3.2 million acres of public land in southeastern Oregon. AR 10374. The Steens Mountain Cooperative Management and Protection Act of 2000 (“Steens Act”), 16 U.S.C. § 460nnn to § 460nnn-122, designated 428,156 acres of public lands within the Burns District as a “Cooperative Management and Protection Area” (“CMPA”). AR 12326. The Steens Act established the Steens Mountain Wilderness, consisting of almost 173,000 acres of BLM land in the CMPA. 16 U.S.C. § 460nnn-61; AR 9974. The Steens Act closed 104 route miles in the CMPA, because of the designation of the Steens Mountain Wilderness. AR 789. See AR 10361(showing pre-Steens Act roads in Steens Mountain Wilderness). The CMPA also includes hundreds of miles of main, secondary, and primitive roads, four developed campgrounds, various grazing allotments, and private lands. See SAR 5148, AR 803, SAR 5108-5145 (grazing permit documents). The Steens Act required development of a Management Plan for the CMPA. 16 U.S.C. § 460nnn-21(b). Pursuant to this requirement, in August Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 13 of 75 Page 4 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK 2005, BLM adopted a final Resource Management Plan (“RMP”). AR 10364- 11051. In developing the RMP, BLM prepared, with extensive public comment, an exhaustive environmental impact statement (“EIS”). AR 11052-12237; AR 11132 (summary of public process). The RMP considered closing 157 miles of known routes in the CMPA, but BLM noted that this alternative threatened to concentrate use on fewer routes, increase congestion, reduce the quality of users’ experiences, and displace use to other lands. AR 11357. As part of the RMP, BLM also developed a brief Transportation Plan (“TP”), set out in Appendix M of the RMP. AR10707-10714. See also AR 10759-10761 (RMP maps showing route networks in CMPA). The TP identified specific routes by name and designated these routes as open or closed. AR 10709. In addition to the 104 miles already closed by the Steens Act, the TP closed another six route miles. AR 10847. The TP also provided route maintenance levels and route definitions for the routes, and established Best Management Practices for the routes. AR 10710-10711. The TP provided that a subsequent Travel Management Plan (“TMP”) decision would contain specific field assessments and need determinations for remaining routes within the CMPA. AR10707. In 2006, Plaintiff sued BLM regarding the RMP on a variety of claims. Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 14 of 75 Page 5 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK Plaintiff was unsuccessful, on all but its TP claim. Oregon Natural Desert Ass’n v. Shuford, No. 06-242-AA, 2007 WL 1695162 at *20 (D. Or. June 8, 2007). This Court held that the TP was not a “comprehensive transportation plan” as required by the Steens Act. Id. at *18. The Court remanded the TP to BLM, but did not vacate the TP, because there was “no harm to the public interest.” See Exhibit A at 8 (Opinion and Order, Oregon Natural Desert Ass’n v. Shuford, No. 06-242-AA, ECF 243, slip op. at 8 (D. Or. July 8, 2008)). II. BLM’s Steens Mountain Travel Management Plan (“TMP”) and the importance of the CMPA route network. BLM completed its TMP decision in 2007, given the need identified in the TP for further CMPA route inventory. In April 2007, BLM issued for public comment an Environmental Assessment (“EA”) for the TMP. See AR 9950. In November 2007, BLM issued its TMP decision. AR 783. In reaching its TMP decision, BLM considered four alternatives: “minimal change”; “maximize use”; “reduced use”; and “proposed action.” AR 9967-70. The “reduced use” alternative, Alternative C, was developed “primarily” based on input from Plaintiff. AR 9967. In considering Alternative C, BLM noted that solitude would be enhanced for nonmotorized users if an additional 129 miles of routes in Wilderness Study Areas Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 15 of 75 Page 6 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK (“WSAs”) were closed to vehicles. AR 9973. BLM noted, however, a lack of evidence of conflicts between motorized and nonmotorized uses, due to infrequent use of primitive routes. AR 785. BLM therefore decided not to select this alternative. AR 799. BLM explained that its TMP objectives included: [D]etermining 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. AR 9955. BLM’s work with the TP had established a network of 501 route miles. AR 9964. BLM road maintenance reports from 1999 indicate hundreds of miles of existing and already inventoried roads in the CMPA. AR 726-37. CMPA routes include the 55-mile Steens Loop Road. AR 9968. There are another 54 miles of “secondary” routes, including the Moon Hill and Riddle Brother Roads. AR 9969. Remaining routes are primitive routes identified in the TP. Id. BLM’s initial TMP inventory involved direct input from private landowners, grazing operators, Harney County commissioners, and Plaintiff. AR 9963. See 13473-79 (maps from ranchers and private landowners indicating additional routes to be added to network); AR 10363 (Harney Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 16 of 75 Page 7 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK County map showing routes); AR 10362 (Plaintiff’s map). The CMPA route network provides important access for uses including public recreation, ecosystem restoration, livestock grazing management, private property access, and BLM administration (including fire management, wild horse administration, and weed treatment). Motorized access on routes is important for primitive camping, hunting, fishing, horseback riding, wildlife viewing and hiking. AR 785-86; AR 793. Steens Act objectives include: cooperative management between public and private land; promoting grazing, recreation, historic and other uses that are sustainable; providing traditional access to tribal members; and conserving the ecological, social, and economic environment. 16 U.S.C. § 460nnn-12. More than one-third of the CMPA’s public acreage has been designated as Wilderness closed to public motorized travel but open to hiking. See AR 12326 (entire CMPA comprises more than 428,000 acres of public land); AR 9974 (Steens Mountain Wilderness portion of CMPA comprises nearly 173,000 acres of public land). About 104 miles of motorized routes were closed to the public upon Wilderness designation, and “many commenters asked BLM to preserve the remaining vehicular routes.” AR 798. Public comments “did not indicate conflicts between users and, in fact, stated that visitors rarely see others Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 17 of 75 Page 8 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK while driving or camping along many of the primitive routes.” AR 798; see also AR 787 (traffic counter data indicating that visitation has remained “relatively constant over the past 10 years”). The Steens Act requires that BLM “emphasize the importance of the historic fire regime” within the CMPA. 16 U.S.C. § 460nnn-23. The Steens Act requires that BLM actively manage juniper in the CMPA “on a landscape level” and directs that BLM management “include the use of natural and prescribed burning.” Id. Roads are critical in managing prescribed and wildfires. RAR 1090-96. According to a BLM fire management expert, roads serve a number of critical functions during fire suppression operations, such as reducing travel time to the fire, helping suppression crews minimize fire size, and limiting wild fire spread into important sage-grouse habitat. Id. Moreover, roads in the area are critical for monitoring livestock use, vegetative studies and general supervision and management activities; the public will use these roads for general recreation activities and most roads will receive substantial use during hunting season. RAR 1101-04. Most of the roads in the CMPA are only used seasonally due to weather conditions and changes in elevation. Roads in the area may begin at lower elevations and end or connect to another road at much higher elevations; because of these kinds of conditions the entire length of a particular road may not Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 18 of 75 Page 9 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK receive the same amount of use. Id. Maintenance is tied to management needs and weather as roads may not require any maintenance at all for many years, but conditions may change abruptly. BLM “needs to be able to respond to changing needs with the ability to be flexible on which routes are maintained each year.” According to a BLM land management expert, the road maintenance program cannot be based on a point in time observation, as conditions and needs are constantly changing, and the program needs to be able to adapt and respond appropriately.” Id. Under the TMP decision, 555 miles of routes remained available for motorized use but, as discussed below, 36 miles of “Obscure Routes” were later closed pursuant to the IBLA’s 2009 ruling. In addition to the 110 miles of CMPA routes closed to motorized travel by the Steens Act and the TP, the TMP closed another 1.23 miles of routes. AR 794. Motorized routes over about 80% of the CMPA are closed to public travel from approximately mid-November to mid-May each year. AR 9967. This closure is to protect road surfaces and adjacent natural resources from impacts from motorized use. Id. Most CMPA routes consist of a natural surface, which has served to reduce the impact on the surrounding natural environment and to reduce the frequency of road maintenance activities necessary in many areas Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 19 of 75 Page 10 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK depending on the type of natural surface (e.g. sand, lava rock, cinders, alkali soils). RAR 1082-87. The routes tend to blend into the environment because they provide the least interference with natural vegetation growth. Id. Typically, primitive roads are used seasonally and may have grass or other vegetation growing on the road surface during some or all of the year. For example, a road may be used for the fall hunting season and see little use the rest of the year. If viewed in the spring, the road may have a relatively lush growth of grass and be somewhat difficult to see. Id. Many of the natural surface roads may go many years between formal maintenance activities. Id. III. Plaintiff’s appeal of the 2007 TMP decision to IBLA and the subsequent proceedings in this Court. In January 2008, Plaintiff appealed the TMP decision to the Interior Board of Land Appeals (“IBLA”). AR 242-94. In February 2009, IBLA ruled on Plaintiff’s appeal. IBLA affirmed the TMP decision in BLM’s favor except it reversed the TMP decision in favor of Plaintiff’s claim challenging the Obscure Routes BLM decided were open to the public. AR 65.1 1 In this memo, “Obscure” in a capitalized form refers to the routes BLM officially designated as “Obscure” in the TMP. By contrast, the lower case “obscure” refers to the word in its general sense used by ONDA but not as an official route designation. Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 20 of 75 Page 11 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK Then, in this Court, Plaintiff sought judicial review of BLM’s TMP decision and the 2009 IBLA ruling. In April 2011, this Court granted in part and denied in part both Plaintiff’s motion for summary judgment and the government’s cross-motion for summary judgment. ECF 103. Upon Plaintiff’s motion for reconsideration, this Court decided against vacating IBLA’s 2009 decision. ECF 118. The Court remanded the matter to IBLA and required that “the agency shall issue a new decision addressing the methodology of BLM’s route inventory and the seven legal issues previously described, many of which pertain to the alleged deficiencies in BLM’s route inventory.” Id. at 18. See RAR 22281 (2014 IBLA remand ruling, identifying the seven issues remanded by this Court). Pending IBLA’s remand ruling, this Court considered dueling injunction proposals from Plaintiff and BLM, and adopted BLM’s proposal in full. ECF 160. IV. IBLA’s September 2014 remand ruling. In its detailed, 70-page-plus September 2014 ruling on the remand, IBLA considered all of the remanded issues regarding BLM’s TMP decision. ECF 203, RAR 22268-341. IBLA also vacated its prior reversal of the BLM’s decision that Obscure Routes were open to motorized travel. Id. Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 21 of 75 Page 12 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK V. BLM’s April 2015 CRP decision. In April 2015, BLM completed an extensive public process for recreation planning in the Steens CMPA and issued its CRP decision. CRP AR 1422-530 (CRP decision and Finding of No Significant Impact). The CRP decision involves both travel management adjustments regarding motorized and non-motorized routes, and recreation enhancements such as signs, kiosks, and campground improvements. CRP AR 1427, 1452. Plaintiff does not challenge the non-motorized travel management adjustments or recreation enhancements. Instead, Plaintiff focuses only on that element of the CRP decision that leaves open certain Obscure Routes, even the routes that only provide administrative or authorized party (e.g. grazing permittee) access rather than public access. In light of IBLA’s September 2014 decision to re-open the Obscure Routes, BLM in its CRP analysis process exercised its discretion to re- examine each route specifically and assess whether to close or leave open each route. BLM invited public input on alternatives regarding the routes. The CRP decision closed most Obscure Routes to the general public. Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 22 of 75 Page 13 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK JUDICIAL REVIEW UNDER THE APA Under the APA, a reviewing court may set aside a final agency action that is “‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Ctr. for Envtl. Law & Policy v. U.S. Bureau of Reclamation, 655 F.3d 1000, 1005 (9th Cir. 2011) (quoting 5 U.S.C. § 706(2)(A)). An agency decision is considered arbitrary and capricious “if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Judicial review under the APA is highly deferential and an agency’s challenged decision is entitled to a presumption of regularity. San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014). Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 23 of 75 Page 14 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK ARGUMENT I. IBLA’s ruling on BLM’s route-inventory methodology was neither arbitrary nor capricious. In its 2014 remand ruling, IBLA addressed in detail this Court’s concern with BLM’s route-inventory methodology, and IBLA’s determination was neither arbitrary nor capricious. RAR 22285-903. IBLA concluded that upon “careful review of the administrative record presented to the Court and as supplemented on judicial remand,” BLM’s 2007 TMP decision “was based on a complete and accurate inventory of the 555 miles of routes designated as open to motorized vehicle use in the CMPA.” RAR 22286. In its remand, this Court emphasized that IBLA “should ensure that the record is robust enough to permit reasoned analysis of BLM’s route inventory, including, if necessary, requiring BLM to either provide additional support for its route designations or reassess those designations.” ECF 103 at 42 (April 28, 2011). Accordingly, IBLA in June 2013 directed Plaintiff “to identify, with specificity, the routes that, in its view, BLM has improperly opened to motorized use and show how BLM's decision was in error.” RAR 22284 (emphasis in original). IBLA also allowed that Plaintiff and BLM were “permitted to supplement the administrative record, because the Court stated Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 24 of 75 Page 15 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK that we could require BLM to provide ‘additional support for its route designations,’ and presumably could allow ONDA to provide additional support for its challenge to those route designations.” RAR 22284. A. IBLA’s ruling is well-supported. IBLA’s ruling is well-supported by the remand administrative record, and IBLA considered the means that BLM had to evaluate CMPA routes, including Plaintiff’s evidence concerning the routes where it opposed motorized travel. As a key threshold matter, Plaintiff fails to identify a relevant statutory provision that IBLA violated in its decision on BLM’s inventory. This is fatal to Plaintiff’s attempt to seek summary judgment against this aspect of the IBLA ruling. “There is no right to sue for a violation of the APA in the absence of a relevant statute whose violation forms the legal basis for the complaint.” El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 959 F.2d 742, 753 (9th Cir. 1991) (internal quotations omitted). To maintain a valid APA claim, a “plaintiff must identify a substantive statute or regulation that the agency action had transgressed and establish that the statute or regulation applies to the United States.” Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 25 of 75 Page 16 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK Preferred Risk Mut. Ins. Co. v. United States, 86 F.3d 789, 792 (8th Cir. 1996). See also Or. Nat. Res. Council v. Thomas, 92 F.3d 792, 797, nn. 10 & 11 (9th Cir.1996) (“[T]here can be no ‘arbitrary and capricious’ review under APA § 706(2) (A) independent of another statute.”). As IBLA noted, Plaintiff’s assertion of which routes are at issue was a moving target.2 RAR 22289. This Court had found that the scope of the allegedly nonexistent routes was the approximately 100 miles of routes in Dr. Craig Miller’s July 2010 declaration (ECF 147, 160). For the first time in its IBLA remand reply brief, Plaintiff claimed that there were 121.4 miles of “obscure” routes based on a new declaration and map. RAR 21766. The map provided no route numbers or other locational data to reference against the information provided by BLM. BLM then obtained underlying Geographical Information System (“GIS”) data for Plaintiff’s new map and BLM provided IBLA with: 1) maps that depict Plaintiff’s allegedly obscure routes with route identifying numbers; 2) a table cross-referencing these allegedly obscure routes with BLM route analysis forms; and 3) a set of BLM’s route analysis 2 That concern remains with Plaintiff’s pending claims, which are based on a new extra-record declaration that is premised on a 2017 dataset of “routes of concern” created by Plaintiff. See ECF 301, Defendants’ motion to strike. Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 26 of 75 Page 17 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK forms addressing all routes described in ONDA’s reply and the associated Miller declaration. RAR 00005-06, 0001-0004 (maps), 00008-01325 (tables and route analysis forms). IBLA thus had before it BLM’s detailed documentation of the existence of the contested routes. While the IBLA decision does not discuss each and every route, IBLA was able to accurately characterize the route-specific information that was before it. IBLA reviewed Plaintiff’s photos and noted that Plaintiff identified “only a handful” of routes that were purportedly nonexistent at the location photographed and many “nonexistent routes were shown to exist at other locations along the route.” RAR 22302 (citing Plaintiff’s route forms). IBLA recounted BLM’s efforts to assess the accuracy of Plaintiff’s conclusion that routes were nonexistent. RAR 22299. IBLA noted that BLM prepared maps to verify the accuracy of allegations of nonexistent routes and documented its route-specific review including the use of aerial photography. RAR 22300. Plaintiff argues that BLM needed to survey every route on the ground. Plaintiff’s motion at 13. But IBLA assessed BLM’s methodology, noting that BLM inventoried many of the routes by sending BLM staff into the field to observe ground conditions or by having BLM staff review contemporary aerial photographs of ground conditions. RAR 22294. Where BLM did not Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 27 of 75 Page 18 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK survey individual routes, IBLA found that BLM used reliable information. RAR 22294-95. IBLA recognized the rational allocation of time and resources in BLM’s not surveying well-known routes. RAR 22294. In ground- inventorying routes for the TMP, BLM focused resources on lesser known or newly-identified routes, but this does not mean that BLM lacked a considerable history regarding the use/existence of routes. Plaintiff argues that IBLA’s inventory ruling was unlawful, because it relied on inaccurate assumptions or data extrapolation. Plaintiff’s motion at 17. But the IBLA remand record contains detailed route-by-route analysis of every route BLM could discern that Plaintiff was contesting. RAR 00005-06, 0001-0004 (maps), 00008-01325 (tables and route analysis forms). And, as discussed by IBLA, the record contains reasonable methodology for every other route. BLM’s brief to IBLA on remand walks through each route that appears to be contested by ONDA. RAR 2066-2073 (discussing individually- numbered routes), RAR 00008-1328 (including hundreds of pages of BLM route analysis forms for dozens of individual routes). Illustratively, Plaintiff took issue with routes 1, 34, 56, 57, 63, 66, 69, 129 and 147 as being insufficiently visible and as being noted as such in BLM staffer Mark Sherbourne’s initial field inventory. RAR 22129, 22132. But Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 28 of 75 Page 19 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK IBLA’s record shows that BLM’s inventory was rational. Route 1 is visible in aerial photography and provides access to an allotment boundary fence for maintenance and monitoring. RAR 00014-17. Routes 34 and 56 connect and are ways3 that provide access for big game hunting, reservoirs, Wilderness Study Area (“WSA”) monitoring, grazing management, and wild horse monitoring. They are visible on aerial photography. RAR 00077-80, 89-92. Route 57 provides access for livestock salting. RAR 00093-96. Route 63 provides the only access into Cabin Pasture and provides access for fence maintenance and monitoring sites. RAR 00100-102. Where not out of view due to tree cover, Route 63 is visible on aerial imagery. RAR 00102. Route 66, visible on aerial imagery, provides the main access to a pasture for use supervision, trend monitoring and utilization monitoring; further, the private property owner requested access on this route. RAR 00103-106. Route 69 is a way that provides access to Oregon Department of Fish and Wildlife’s Habitat and Access Program, a fence, and a trend plot. RAR 00111-114. Route 129, visible on aerial imagery, provides access to water monitoring 3 A “way” is a primitive route within a Wilderness Study Area (WSA). WSAs are, by definition, roadless, so routes were previously labeled as “ways” and are now called “primitive routes.” CRP AR 5194-95; 43 U.S.C. § 1782 (defining WSAs as “roadless”). Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 29 of 75 Page 20 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK probes and has been used to implement the Five Creeks restoration project. RAR 00295-298. Route 147, which is documented on aerial imagery, provides access to a fence and private lands. RAR 00334-37. Plaintiff also posed objections to IBLA, based on alleged obscurity, to other inventoried routes. RAR 22130. But again, IBLA’s record shows evidence of the routes’ existence and utility. The specific routes are discussed in route analysis forms, including aerial imagery, and a few routes illustrate the flaws with Plaintiff’s arguments that the routes are nonexistent. Route 86 indicates how a route can have an ongoing purpose and be evident on an aerial photograph, yet contain considerable vegetation growth at times on certain segments. It provides the only access to the lower portion of the Riddle Creek pasture and to maintain a fence crossing and reach several riparian monitoring points. The route also provides the safest firefighter access to Riddle Creek and has been used as a firebreak in the past. Yet an excellent precipitation year provided grass production concealing much of the route. Photographs show vegetation growth after precipitation in July, but also show the route as clearly evident along other portions. RAR 00165-170. Route 106 illustrates how a route alleged to be obscure is very evident on aerial imagery and how the route is necessary for fire management, big game Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 30 of 75 Page 21 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK hunting, fence maintenance, weed monitoring, and as a fire control line in the North Steens Ecosystem Restoration Project. RAR 00216-219.4 Yet, Plaintiff cites Route 106 as an example of a route that should have been closed due to an initial staff recommendation. RAR 22127. Initial recommendations did not bind the BLM’s ultimate determination, based on additional staff review, and the record shows that this route is apparent and needed for several purposes. There are further examples that IBLA was reviewing a meaningful BLM inventory methodology. Route 136 provides access for livestock salting, a WSA, and a weather station. It also provides access for monitoring, weed treatment, grazing management and a fire break. The fire break is important to protect a riparian area. RAR 00307-310. Plaintiff asserted that route 136 does not match any routes, RAR 22133, but BLM provided aerial imagery of the route. RAR 00310. 4 Plaintiff argues that IBLA’s 2014 ruling was arbitrary and capricious, because BLM inconsistently used staffer Mark Sherbourne’s inventory information and that, where his recommendations were not followed by managers, this makes BLM’s overall inventory methodology unreliable. Plaintiff’s motion at 20. But IBLA correctly noted that these notes constituted staff initial assessment later subjected to closer scrutiny resulting in BLM’s final route determinations. RAR 22301. Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 31 of 75 Page 22 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK Plaintiff argued to IBLA that routes with map reference 5, 6, 21, 31, and 104 are not closed but were noted as “vacant” on BLM’s initial inventory form. RAR 22132. But the record indicates that 5, 6, 31, and 104 were not designated as routes in the TMP. Route 21 is a way that is closed seasonally; it provides access for recreational opportunities, a dispersed campsite, WSA monitoring, and grazing monitoring. RAR 00039-41; AR 802 and AR 10288; SAR 5146. For route after additional route, hundreds of pages in the IBLA’s record document BLM’s rational methodology for assessing the existence and utility of the routes at issue in the remand. See, e.g., RAR 00008-1325. IBLA was not arbitrary and capricious, with this record underpinning, in recognizing BLM’s systematic review of routes using a rational methodology of its own choosing. Plaintiff argues that BLM’s methodology was flawed due to lack of ground-based photographs. Plaintiff’s motion at 16-17. But IBLA specifically reviewed photos and explained that Plaintiff identified “only a handful” that were purportedly nonexistent where photographed and that many supposedly nonexistent routes “were shown to exist at other locations along the route.” RAR 22302 (citing multiple Plaintiff route forms). IBLA rationally found that “the vast majority of the routes photographed confirm they exist on the Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 32 of 75 Page 23 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK ground at the location ONDA photographed although they ranged from clearly existent to barely existent.” RAR 22302. For example, one of Plaintiff’s photo captions states “little sign of use,” and the photo shows multiple sets of tire treads on a clearly-established route. AR 13229. See also AR 13161 (characterizing existing routes as “barely visible”); AR 13200 (describing route as “overgrown”). And IBLA found it rational that BLM did not rely on ground-level photographs to determine the existence of routes, since they might be taken at times of the year or at points along the route when vegetative growth might obscure an otherwise traceable route. RAR 22297. IBLA properly noted that no BLM applicable guidance for primitive roads and trails requires photographic inventory. RAR 22292. BLM’s handbook for primitive road inventory does not require a condition assessment of remote routes and, even when BLM does conduct condition assessments, the handbook only provides for photographing human health and safety issues. RAR 01349. Moreover, the handbook contemplates that primitive roads will have vegetation. RAR 01349, 1353. Plaintiff argues that BLM’s route analysis forms are post hoc to the 2007 TMP decision. Plaintiff’s motion at 21. IBLA rejected this argument. RAR 22299 n.36. Moreover, this Court is not reviewing the TMP decision in Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 33 of 75 Page 24 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK a vacuum; it is reviewing the IBLA 2014 remand ruling, for which both Plaintiff and BLM submitted supplemental administrative materials. As this Court directed, IBLA could order BLM to “provide further support for” its route decisions. ECF 103 at 47. Further, the route forms illustrate and support what BLM already explained in the TMP EA and TMP decision: the EA accurately described the primitive conditions of the routes, AR 9968-69, and their infrequent use in some circumstances. AR 9988. The TMP made clear that these primitive routes provide access for private lands, grazing, recreation, and land management. AR 9955. II. The CRP’s analysis of the limited routes at issue was neither arbitrary nor capricious. On unclear statutory grounds, Plaintiff also challenges the route- analysis baseline work that underpins BLM’s 2015 CRP decision. Plaintiff’s motion at 23-25. The CRP decision is the culmination of BLM’s analysis of recreational facilities and activities within and adjacent to CMPA. CRP AR 1422. Regarding motorized travel management, the CRP decision closed 17.32 miles of routes to all uses (see tables 3, 6, 7 at CRP AR 1434, 1437-38), and closed 16.92 miles of routes to public use but left in place access for Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 34 of 75 Page 25 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK administrative use and certain authorized parties. See tables 1, 2, 4, 8, 9, 10 at CRP AR 1432-33, 1435, 1439-41. The CRP EA expressly considered, through Alternative E (Plaintiff’s alternative), an option that would convert an extensive number of roads and ways into non-motorized trails with some exceptions for administrative access. CRP AR 2421. In all, Alternative E considered closing 175.9 miles of roads and ways. CRP AR 2422. Ultimately, BLM did not close all of these routes, but for those routes left open, BLM explained the reasoning in detail and based its decision on route-specific analysis forms. CRP AR 1553-57. NEPA is the only apparent basis for Plaintiff’s “incomplete/unreliable inventory” argument against the CRP. Plaintiff’s motion at 23-25. Otherwise, Plaintiff’s claim is a “free-floating” APA claim that is not legally cognizable. See El Rescate Legal Servs., 959 F.2d at 753. Plaintiff’s unconvincing NEPA argument is that it was illegal for BLM to issue a CRP decision during the November-May six-month period (after two separate public comment periods), because Steens Mountain is inaccessible that half of the year. Plaintiff’s motion at 23-24. Plaintiff commented in early 2015 on the CRP EA but did not express any concerns that BLM would issue a decision during winter months that would prejudice its ability to assess Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 35 of 75 Page 26 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK Obscure Routes. SUPP AR 1384-456. To the contrary, Plaintiff told BLM that it had already “analyzed the proposed Obscure Route designations,” and disagreed with the designations. SUPP AR 1387. Plaintiff also argues that BLM’s CRP decision violated NEPA, because the agency added photos to the CRP administrative record after the public comment period for five routes, even though the photos pre-dated the CRP decision itself. Plaintiff’s motion at 25. But Plaintiff provides no authority for its argument that NEPA – a procedural statute -- requires the production of photos by the agency, or that adding photos to an administrative record in response to public comments, but prior to issuing a decision, violates NEPA. III. Defendants did not violate the Steens Act. A. Legal background Enacted in October 2000, the Steens Act provides for establishment of the Cooperative Management and Protection Area (“CMPA”). 16 U.S.C. § 460nnn-11. The Act requires that the BLM manage the CMPA to conserve its long-term ecological integrity and, consistent with this purpose, balance a variety of objectives including “promoting grazing, recreation, historic, and other uses that are sustainable.” 16 U.S.C. § 460nnn-12(b)(3). Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 36 of 75 Page 27 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK Under the Steens Act, the “use of motorized or mechanized vehicles” on federal lands in the CMPA “is prohibited off road,” and is “limited to such roads and trails as may be designated for their use as part of” the underlying Steens Resource Management Plan (“RMP”). 16 U.S.C. § 460nnn-22(b)(1). As discussed in more detail below, while motorized travel is prohibited “off road,” this provision allows motorized travel on designated “trails.” In addition, the Steens Act provides that “[n]o new road or trail for motorized or mechanized vehicles may be constructed” on BLM land in the CMPA, “unless the Secretary determines that the road or trail is necessary for public safety or protection of the environment.” Id. § 460nnn-22(d)(1). B. IBLA’s 2014 remand ruling rationally interpreted and applied the Steens Act to the TMP. In its 2014 remand ruling, IBLA addressed the Steens Act issues this Court identified in its April 2011 ruling. RAR 22296, 22305-11; ECF 103 at 26-29 (discussion of the Steens Act issues to be remanded). IBLA’s detailed ruling extensively cites the parties’ briefing and the administrative record, and its interpretation of the Steens Act is due Chevron deference. See ECF 103 at 20-24 (providing IBLA Chevron deference in its Steens Act interpretations). Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 37 of 75 Page 28 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK 1. IBLA reached a permissible interpretation that the Steens Act allows motorized travel on roads and trails that were in existence at the time of the Act’s enactment. In its 2014 ruling, IBLA provided a permissible construction of the Steens Act, that motorized travel is allowed on both roads and trails under 16 U.S.C. § 460nnn-22(b)(1). RAR 22305-08. This Court raised that possible interpretation in its April 2011 ruling. ECF 103 at 28 (“Even if a route characterized as a Historical Route is hard to locate on the ground and thus cannot be a ‘road,’ it could potentially be a ‘trail’” for motorized use under section 460nnn-22(b)(1)(B). IBLA also rationally interpreted section 460nnn-22(d)(1) of the Steens Act to prohibit “new” road and trail construction, with “a new road or trail . . . to be distinguished from a road or trail that was in existence at the time of enactment of the Act, i.e., October 30, 2000.” RAR 22308 (emphasis in original). Noting the lack of definition of “road” or “trail” in the Steens Act, RAR 22304, IBLA found that the Steens Act “does not exclude routes that have become overgrown or otherwise naturally reclaimed, but whose line may be traced on the ground, or exclude routes that have been infrequently used in the past. Nor does it exclude routes that exist only as a matter of record.” RAR 22296. IBLA concluded that a “new route is clearly one that never Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 38 of 75 Page 29 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK existed, but has now been brought into existence, by construction or use.” RAR 22296 (emphasis added). Since much of the public lands are covered by 40 grazing allotments, IBLA explained that many routes provide access to the grazing permittees and to BLM for the purposes of rangeland monitoring. RAR 22300. IBLA found that, “while such routes may not be used or maintained on a regular basis by permittees and BLM, they are, undoubtedly, necessary in connection with longstanding grazing use and BLM's corresponding grazing management.” Id. As IBLA noted, there are various types of reliable evidence for a road or trail’s existence, including aerial photos and first-hand accounts by members of the public. RAR 22295- 96. Plaintiff disputes IBLA’s interpretation of the Steens Act to the extent that it allows for travel on routes that “exist only as a matter of record.” Plaintiff’s motion at 37. But Plaintiff fails to explain why it is inappropriate to take aerial photos or the recollections of local landowners and grazing permittees into account. As IBLA found, the TMP decision process “was clearly designed to identify all existing routes.” RAR 22298. Moreover, Plaintiff earlier conceded that it would accept the “recollected” historic use accounts regarding the existence of certain routes. ECF 103 at 31 n.7, 32. Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 39 of 75 Page 30 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK And as IBLA emphasized, Plaintiff’s photos mostly “disclose the existence of routes,” even if they have become partially obscured by vegetation and weathering. RAR 22297. “[N]owhere has ONDA clearly identified specific routes that are nonexistent along their entire length.” Id. See also RAR 22302 (discussing Plaintiff’s route data).5 With regard to non-public, grazing permittee-only Historical Routes in Wilderness Study Areas (“WSAs”), Plaintiff argues that the TMP decision violates the Steens Act’s restriction against the construction of new roads or 5 BLM’s Travel and Transportation Handbook defines “primitive roads” as those “for use by four-wheel drive or high-clearance vehicles” which “do not customarily meet any BLM road design standards.” It defines trails as “linear routes managed for human-powered, stock, or off-road vehicle forms of transportation or for historical or heritage values.” RAR 2111. BLM uses a particular definition of “road” and “roadless” for purposes of wilderness inventory — but this inventory is not the purpose of the TMP. The “roadless” definition serves a specific purpose, as a criterion for an area to be considered for wilderness inventory or management. See 43 U.S.C. § 1782. Any attempt by Plaintiff to impose the “road” definition used in wilderness inventory (i.e. “improved and maintained by mechanical means to insure relatively regular and continuous use”) is misplaced when determining trails, primitive roads, and roads throughout the CMPA for travel management purposes. See RAR 22304 (IBLA critique of Plaintiff’s application of the terms road and roadless). BLM, through its RMP, and Congress, through the Steens Act, already made determinations regarding presence of wilderness character and designation of Wilderness, respectively. Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 40 of 75 Page 31 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK trails. 16 U.S.C. § 460nnn-22(d)(1); Plaintiff’s motion at 35-36. But as IBLA found, there is adequate evidence of the existence of these routes, and Defendants are not attempting to rely on the Steens Act’s limited allowance for off-road travel. RAR 22310. Defendants further address the Historical Routes in their FLPMA argument below. 2. IBLA’s ruling was rational that BLM did not violate the Steens Act by authorizing motorized travel on the ATV routes identified in the TMP decision. In its 2014 ruling, IBLA concluded that BLM’s TMP decision authorizing motorized travel on ATV routes did not violate the Steens Act’s prohibition on “new” road or trail construction. RAR 22310-11. As IBLA found, the ATV routes exist on the ground, and “are not routes that are difficult or impossible to locate on the ground.” RAR 22311. Plaintiff=s argument that ATV Routes are “nonexistent” lacks merit. See AR 589-98 (Plaintiff’s photo indicating ATV routes are clear on the ground). Plaintiff believes these routes have been “destroyed,” and therefore, the BLM is authorizing “off-road” travel illegal under the Steens Act. Plaintiff fails to explain how the Steens Act provision regarding new construction of routes, 16 U.S.C. ' 460nnn-22(d), applies to a decision that leaves open existing routes. Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 41 of 75 Page 32 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK C. BLM’s 2015 CRP decision does not violate the Steens Act with regard to ATV routes. Plaintiff’s only Steens Act claim against BLM’s 2015 CRP decision is that the ATV route it identified is nonexistent. Therefore, according to Plaintiff, BLM violated the Steens Act’s restriction against construction of new roads or trails. 16 U.S.C. § 460nnn-22(d)(1); Plaintiff’s motion at 38. But the ATV route (OR-28) was included in the TMP decision; it is not a newly-identified route. CRP AR 1496. Moreover, the record documents its existence. CRP AR 2852-54 (noting that the route is “visible” in an aerial photograph). IV. Defendants did not violate FLPMA. A. Legal background The Federal Land Policy and Management Act of 1976 (“FLPMA”), 43 U.S.C. § 1701-1784, requires that BLM manage the public lands based on the principle of “multiple use and sustained yield,” to protect environmental, ecological, and recreational values, while also recognizing “the Nation's need for domestic sources of minerals, food, timber, and fiber from the public lands[.]” 43 U.S.C. § 1701(a). FLPMA requires that BLM “continue to manage” wilderness study Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 42 of 75 Page 33 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK areas (“WSAs”) “so as to not to impair” their suitability for future wilderness designation. 43 U.S.C. § 1782(c). This “non-impairment” provision is subject to “grandfathered” uses in WSAs – the “continuation of existing mining and grazing uses and mineral leasing in the manner and degree in which the same was being conducted on October 21, 1976.” 43 U.S.C. § 1782(c). The Steens Act, 16 U.S.C. § 460nnn-64(b), requires that BLM administer WSAs in the CMPA consistent with the FLPMA provisions of 43 U.S.C. § 1782(c), including the grandfathered uses allowance. B. IBLA’s 2014 remand ruling rationally interpreted and applied FLPMA to the TMP. In its 2014 remand ruling, IBLA addressed the FLPMA “non- impairment” issues this Court identified in its April 2011 ruling. RAR 22311-20; ECF 103 at 29-34 (discussion of FLPMA non-impairment issues). IBLA’s detailed ruling extensively cites the parties’ briefing and the administrative record, and its interpretation of FLPMA merits Chevron deference. See ECF 103 at 20-24 (providing IBLA Chevron deference in its interpretations of the Steens Act, which Interior administers along with FLPMA). See Mount Royal Joint Venture v. Kempthorne, 477 F.3d 745, 754- 55 (D.C. Cir. 2007) (applying Chevron deference to IBLA’s interpretation of Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 43 of 75 Page 34 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK FLPMA, and holding that IBLA proceedings are formal agency adjudications). Plaintiff argues that IBLA’s ruling violated FLPMA with regard to BLM’s designation of Historical Routes in WSAs. Plaintiff’s motion at 40. But IBLA’s remand ruling established that the Historical Routes in WSAs are open only to grazing permittees under the TMP. RAR 22316. This is fatal to Plaintiff’s FLPMA claim, because Plaintiff earlier conceded that it did not object to this continued historic use by ranchers. AR 12415 (STM001320); AR 255 n.9. In 2011, this Court found that Plaintiff “conceded that continued motorized use by grazing permittees was proper” on Historical Routes in WSAs, “even if that use was not documented in BLM’s late-1970’s Wilderness EIS.” ECF 103 at 31. Provided that the TMP “only allows grazing permittees to continue their pre-FLPMA access over what are now termed Historical Routes,” this Court emphasized that it “cannot see how those Historical Routes violate the FLPMA, especially since ONDA repeatedly conceded that the ‘recollected’ historic use by permittees would not run afoul of the FLPMA.” Id. at 32. Plaintiff argues that IBLA’s ruling was arbitrary and capricious, because allowing ranchers to use Historical Routes that have become Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 44 of 75 Page 35 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK overgrown violates FLPMA. Plaintiff’s motion at 39. Under Plaintiff’s logic, the fact that only occasional motorized use is necessary on a permittee-only route and that vegetation may grow up in a route between occasional trips should bar historic permittee access. But the record shows rancher Dick Jenkins expressed opposition to limiting “access to the proper management of this area we have used for so many years.” As he explained, “it is preferable to have more numbers of roads that will be used only once or twice a season, rather than fewer roads used more often and creating more impact to that specific area.” AR 12500 (STM 1422-23). There is no evidence Congress intended such a punitive approach in which permittees would lose access to carry out their historic livestock operations if they did not drive frequently enough. To the contrary, Congress expressly allowed for “grandfathered” grazing in WSAs, and FLPMA’s non- impairment standard is subject to these grandfathered uses. 43 U.S.C. § 1782(c). As IBLA explained, “even were impairment [to WSAs] likely to occur, BLM is permitted to allow the use of motorized vehicles in the WSAs in connection with continuation of existing grandfathered uses in the same manner and degree in which they were being conducted on October 21, 1976.” RAR 22312. Similarly, BLM’s WSA manual emphasizes, with regard to Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 45 of 75 Page 36 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK livestock grazing, that “grandfathered uses and facilities may continue in the same manner and degree” as occurring at passage of FLPMA “even if this impairs wilderness suitability.” CRP AR 5155. As IBLA also recognized, BLM’s designation of Historical Routes for permittee use in WSAs does not violate the Steens Act’s off-road prohibition because BLM documented the existence of the routes. RAR 22310. IBLA reviewed BLM’s analysis, and specifically addressed the Historical Routes in WSAs that Plaintiff alleged did not exist. RAR 22316-20. IBLA recognized that the WSA inventory map did not disclose all of the routes that were in existence on October 21, 1976, but noted that BLM policy provides that other documented proof of existence can be used. RAR 22317, 22319. The administrative record contains ample evidence of historic use of grazing routes that further support IBLA’s ruling. There are maps showing a series of historic routes in areas including the far northeast corner of the CMPA and the Bridge Creek WSA. These are the portions of the CMPA with the vast majority of Historical Routes. See AR 803 (TMP decision map); AR 10292-93 (field notes for these routes); AR 10316 (BLM field map of Historical Routes 72-80 in northeast portion of CMPA). See also AR 9971 (noting that much of the CMPA “has been grazed by domestic livestock for Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 46 of 75 Page 37 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK over 100 years and motorized vehicle use by grazing permittees” of Historical Routes “occurred prior to the passage of the FLPMA”); AR 10285 (letter urging that BLM retain historic routes for grazing); AR 13476 (rancher Dick Jenkins map, indicating his historic grazing routes in the northeast corner of the CMPA, later designated as Historical Routes). Plaintiff also argues in passing that the 2014 IBLA ruling violated FLPMA with regard to so-called “pioneered routes” in WSAs. Plaintiff’s motion at 40. But IBLA found that Plaintiff failed to establish any error by BLM in finding that such routes were in existence – at least as a matter of record -- when FLPMA was passed. RAR 22303. See RAR 22317 (“ONDA offers no affirmative evidence that any of these routes was not in existence on October 21, 1976.”). To the extent that Plaintiff provided specific examples, IBLA addressed and rebutted them. RAR 22318-19. C. BLM’s 2015 CRP decision did not violate FLPMA’s non- impairment provision. Turning to BLM’s 2015 CRP decision, which closed many of the Obscure Routes reopened by IBLA’s 2014 ruling, Plaintiff argues that BLM violated FLPMA by not closing all those routes. Plaintiff’s motion at 40. According to Plaintiff, these routes have “been naturally reclaimed” and “do Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 47 of 75 Page 38 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK not exist on the ground.” Id. at 41. But BLM’s experts disagree, and the administrative record shows that BLM documented the existence of each of these routes as part of its CRP review. See CRP AR 2715-892. Plaintiff focuses on the routes addressed in tables 8, 11, and 13 of the CRP decision, but misconstrues and misrepresents the import of these tables. Table 8 showed that BLM was closing nine Obscure ways in WSAs to the public. CRP AR 1439-40. The routes are only open to grazing permittees, landowners, and BLM and its land management contractors, and BLM documented for each route why such access was needed. Id. These ways will only be maintained by the passage of vehicles unless appropriate site-specific NEPA analysis is conducted for safety or resource concerns. Id. Moreover, as discussed above, BLM is required to provide access for grandfathered grazing. Further, the Steens Act expressly directs BLM to provide reasonable access to nonfederal lands. 16 U.S.C. § 460nnn- 22(e). The Steens Act also recognizes BLM’s need for access to administer public lands. 16 U.S.C. § 460nnn-22(b)(2)(A). Plaintiff’s argument is without merit that allowing for these limited types of access violate FLPMA because the routes may “regress.” For livestock grazing, “grandfathered uses and facilities may continue in the Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 48 of 75 Page 39 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK same manner and degree” as occurring at passage of FLPMA “even if this impairs wilderness suitability.” CRP AR 5155. And BLM can allow for access to private lands through WSAs under FLPMA. CRP AR 5163. As for the routes listed in tables 11 and 13, Plaintiffs establish no FLPMA violation, and BLM inventoried each route. See CRP AR 2715-892. As table 11 indicates, BLM was keeping open a narrow way that is visible on the ground and important for ATV recreation. CRP AR 1441, 2852-54. Table 13 displayed certain Obscure Routes and their existence/utility. These routes were already open per IBLA’s September 2014 ruling and would remain open under the CRP decision as Primitive Routes. CRP AR 1447. There is no prohibition on continuing use of existing ways. The BLM WSA manual recognizes that recreational use of motor vehicles can be authorized on primitive routes in WSAs. CRP AR 5170. D. Plaintiff’s FLPMA “minimization criteria” argument fails against the 2007 TMP decision. For the first time, Plaintiff attempts to establish that the 2007 TMP decision violated a FLPMA regulation regarding steps to minimize impacts to various resources. Plaintiff’s motion at 41-42. But here, Plaintiff never exhausted any FLPMA regulatory “minimization criteria” claim before IBLA. Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 49 of 75 Page 40 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK This bars its attempt now to challenge the TMP decision on this ground. See ECF 103 at 41 (“[I]t would be inappropriate to resolve the merits of an issue the IBLA did not even address.”). This Court’s earlier ruling in this case bars Plaintiff’s attempt to raise a brand-new claim against the TMP decision. In November 2010, this Court ruled that Plaintiff “should not be permitted now to challenge the [TMP] Decision Record as a final agency action and effectively bring new claims that it failed to exhaust previously before the IBLA.” ECF 82 at 9 (November 23, 2010). Plaintiff failed to raise the minimization criteria claim before IBLA issued its initial 2009 ruling regarding the TMP. Nor was the minimization criteria issue ever remanded to IBLA by this Court in 2011, or briefed by the parties before IBLA before IBLA issued its 2014 ruling. Plaintiff’s FLPMA claim is therefore precluded. After nine years of TMP litigation, Plaintiff waived the claim having failed to raise it before IBLA (twice) or this Court. The minimization criteria and FLPMA regulations appear nowhere in Plaintiff’s prior district court or IBLA briefs. If this were a TMP concern of Plaintiff’s, it should have been part of the IBLA appeal and briefing to this Court prior to remand. Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 50 of 75 Page 41 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK E. Plaintiff’s FLPMA “minimization criteria” argument fails against the 2015 CRP decision. Plaintiff also claims that BLM’s CRP decision to leave open certain Obscure Routes violated the FLPMA minimization criteria regulation, 43 C.F.R. § 8342.1, concerning the designation of public lands as open, limited, or closed to off-road vehicles. Plaintiff’s motion at 41-42. But the regulation did not apply to the CRP’s decision to leave open these routes. The regulation at issue, 43 C.F.R. § 8342.1, does not bind the CRP’s treatment of these open routes. The regulation applies to “designations” of lands to off-road vehicles, and acts by BLM through which areas or trails are “located.” That is, it only applies when BLM is taking the affirmative step to designate an area for off- road vehicles or locate special areas or trails for such use. The CRP did not comprise such a designation or location. Rather, the CRP was an effort by BLM to consider whether to alter the status of routes already made. See CRP AR 1424 (noting that one of the CRP’s goals was to manage recreation “in conformance with” the existing off- road vehicle designation from the underlying RMP). Under FLPMA, BLM has “a great deal of discretion in deciding how to achieve” compliance with an RMP. Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 66 (2004). See CRP AR 1503, 1504, 1505 (BLM’s responses to comments, provided with the CRP Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 51 of 75 Page 42 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK decision, stating that designations were already made as a part of the RMP in earlier CMPA planning). By leaving certain Obscure Routes open, the CRP did not make new designations or locate routes to which 43 C.F.R. § 8342.1 applied; where the open Obscure Routes are concerned, BLM simply selected the No Action alternative from the CRP EA and left the status quo undisturbed. Moreover, the sole off-road vehicle (ATV) route in the CRP decision was already included in the TMP decision; it is not a newly-identified route. CRP AR 1496. Nevertheless, for each and every route that BLM re-examined in reaching the CRP decision, the agency documented its existence and analyzed its utility. See CRP AR 2715-892 (route analysis documents), 1489-99 (BLM’s response to comments, discussing route existence in detail). There was no FLPMA violation. V. IBLA’s 2014 ruling did not violate the Wilderness Act/Steens Act with regard to wilderness impairment. A. Legal background The Wilderness Act was enacted in 1964 to establish a “National Wilderness Preservation System” to be composed of federally owned areas designated by Congress as wilderness areas. 16 U.S.C. § 1131(a). The Act Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 52 of 75 Page 43 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK directs that wilderness areas shall be administered “in such manner as will leave them unimpaired for future use and enjoyment as wilderness.” Id. § 1131(a). With certain relevant exceptions, the Wilderness Act prohibits motorized equipment in wilderness areas. 16 U.S.C. § 1133(c). The Steens Act allows for the continuation of grazing operations in the Steens Mountain Wilderness (outside the no-grazing portion of the Wilderness), where grazing was established prior to October 30, 2000. 16 U.S.C. § 460nnn-62(a), (d)(1) (citing the Wilderness Act, 16 U.S.C. §1133(d)(4)). The Steens Act also provides that wilderness grazing shall be managed “in accordance with the guidelines set forth” in Appendices A and B of House Report 101-405 of the 101st Congress). These guidelines provide that “[w]here practical alternatives do not exist, maintenance or other activities may be accomplished through the occasional use of motorized equipment . . . The use of motorized equipment should be based on a rule of practical necessity and reasonableness.” AR 715-716. The guidelines allow for use of motorized equipment for maintenance of grazing facilities or other necessary purposes. Id. Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 53 of 75 Page 44 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK B. IBLA’s ruling was not unlawful under the Wilderness Act/Steens Act. In its 2014 remand ruling, IBLA addressed the Wilderness Act issues this Court identified in its April 2011 ruling. RAR 22320-27; ECF 103 at 34- 35 (discussion of Wilderness Act issues). IBLA’s detailed, rational ruling extensively cites the parties’ briefing and the administrative record, and its interpretation of the Wilderness Act and the interconnected Steens Act wilderness provision is due Chevron deference. RAR 22320-27. The wilderness issue involves interpretation of both the Steens Act and Wilderness Act. This Court recognizes that IBLA is due Chevron deference in interpreting the Steens Act. ECF 103 at 20-24. Moreover, for a decision regarding the Wilderness Act, if the statute grants agency discretion on the matter, then the agency is entitled to Chevron deference if that decision has the force of law. High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 638 (9th Cir. 2004). Here, Interior is responsible for administering the Steens Act and Wilderness Act within the federal lands in the CMPA, and IBLA’s 2014 ruling is the result of formal APA adjudication and has the force of law. In its summary judgment motion, Plaintiff challenges IBLA’s ruling with regard to Wilderness routes available only to grazing permittees rather Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 54 of 75 Page 45 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK than the general public. Plaintiff’s motion at 43-45. Plaintiff waives its Wilderness Act claim regarding the Indian Creek Road area. The first flaw with Plaintiff’s challenge to Wilderness routes for grazing permittees is that it is a flip-flop from what Plaintiff represented earlier. AR 12936 (“ONDA supports the rancher=s historic use in the Wilderness.”), AR 12942 (“ONDA does not support closing any routes needed by the ranching community to maintain their operations on Steens.”). The second flaw with Plaintiff’s argument is that it attempts to expand the disputed routes beyond those remanded by this Court and briefed to IBLA. See Plaintiff’s brief at 43-44. As this Court noted in 2011, Plaintiff disputed whether “five specific routes” violated the Wilderness Act. ECF 103 at 34-35. Accordingly, Plaintiff’s opening brief on the IBLA remand discussed just those five routes – routes 4, 141, 142, 143, and 144. Plaintiff then told IBLA that these were “the five disputed routes.” RAR 21905. To the extent that Plaintiff now newly identifies other routes, those arguments are waived and/or Plaintiff is estopped because IBLA relied on Plaintiff’s representation that the five routes comprised those in dispute. See RAR 22322 (IBLA’s 2014 ruling, noting that Plaintiff challenged five routes in the Wilderness). See Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 55 of 75 Page 46 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK ECF 103 at 41 (“[I]t would be inappropriate to resolve the merits of an issue the IBLA did not even address.”). The third flaw with Plaintiff’s argument is that it fails to establish that IBLA was arbitrary and capricious in its statutory interpretation that the “grandfathered” date for Wilderness-area grazing was October 30, 2000 – the date of the Steens Act’s enactment. RAR 22321-22 (noting that the Steens Act provides for the continuation of grazing use in the Wilderness, if that use was in existence as of October 30, 2000, citing 16 U.S.C. § 460nnn-62(a)). Plaintiff never briefed to IBLA its new argument that the grandfathered date should be October 21, 1976, so the argument is waived. Plaintiff’s motion at 43. Similarly, the Oregon Wilderness EIS (1989) long pre-dates the October 2000 enactment of the Steens Act, so whether the routes were in the Wilderness EIS is immaterial. See Plaintiff’s motion at 44. Most importantly, Plaintiff fails to establish that IBLA was arbitrary and capricious in how it interpreted the Wilderness Act/Steens Act regarding the five disputed routes. There is specific record evidence for each of these routes, and evidence that there are no practical alternatives to occasional motorized access on the routes. See AR 9946 (noting that wilderness grazing routes “follow old closed routes”). Route 4 is within the Frazier Field grazing Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 56 of 75 Page 47 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK allotment, off the Steens Loop Road just east of the Page Springs campground and Fish Creek Road. SAR 5146 (showing route), AR 802, RAR 2641-43 (maps showing route within Frazier Field allotment). BLM field notes indicate that the permittee requested this route in order to transfer salt for grazing. AR 10289. See also AR 13439 (discussion of Frazier Field permittee need for motorized wilderness access for carrying large quantities of salt). As the AR 802 map shows, route 4 also accesses a water reservoir. Frazier Field allotment is especially dependent on motorized access to reservoirs. “Frazier Field relies almost exclusively on water reservoirs and checking them by foot or horseback would require several more trips from the base property which is 75 miles away.” AR 9947. Along similar lines, BLM rationally designated routes 141 through 144, in the southwest corner of the CMPA. SAR 5146 (map showing the routes in the “Home Creek Butte” area), RAR 2641-43 (map showing routes within South Steens allotment). The record documents a need to access the wilderness portion of the allotment. AR 9943, 9947. BLM inventory notes describe each of these routes, citing a conversation with a landowner that some of these routes are old CCC routes, and that the routes access private property, or access grazing facilities such as fencing. AR 10296. See also AR Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 57 of 75 Page 48 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK 10286 (comment letter to BLM citing CCC fences, roads, and water developments from 1930s that exist in the area). In the underlying TMP decision that IBLA reviewed, BLM’s allowance for limited motorized use of these routes was rational, because it is authorized when “there is no practical alternative” for managing livestock using nonmotorized or nonmechanized forms of travel. AR 794. This is consistent with the Steens Act’s provisions on wilderness grazing. BLM allowed limited access, centered on distribution of large quantities of salt and checking critical water reservoirs in allotments with limited live water or springs. Id., AR 9947. Such activities must have been occurring at the time of the wilderness area designation, AR 794, and stipulations will be added to grazing permits outlining the degree of this access. Id. Given the infrequency with which wilderness routes were -- and will be -- used, it makes sense that ground disturbance has been and will continue to be minimal. See AR 9810 (letter to BLM from grazing permittee, discussing historic motorized wilderness use for salt and fencing, and that such use has shown so little impact Athat we had to show@ some routes to BLM). Plaintiff fails to establish that IBLA was arbitrary and capricious in ruling against its wilderness impairment claim. Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 58 of 75 Page 49 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK VI. Defendants did not violate NEPA. A. Legal background The National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., requires that federal agencies adequately assess the impact of federal actions “significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C); Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1185 (9th Cir. 2008). NEPA neither compels particular results nor imposes substantive environmental obligations upon federal agencies. Robertson, 490 U.S. at 350-351. Where an agency’s proposed action does not significantly affect the environment, NEPA does not require an EIS. 42 U.S.C. § 4332(C). See also Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 372, 375-376, 377 n.23, 378 (1989); Kleppe v. Sierra Club, 427 U.S. 390, 394 (1976). Under NEPA regulations, an agency may prepare an EA to determine whether a proposed action would precipitate a significant impact on the environment requiring an EIS. 40 C.F.R. § 1501.4. These regulations define an EA as “a concise public document . . . that serves to [b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.” 40 C.F.R. § 1508.9(a)(1). Under this standard, an agency need not prepare an Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 59 of 75 Page 50 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK EIS if, on the basis of “sufficient evidence” and related analysis, it concludes in an EA and corresponding Finding of No Significant Impact that its proposed action would not significantly affect the environment. Id.; 40 C.F.R. § 1508.13. Plaintiff argues that under Ocean Advocates v. Corps of Engineers, 402 F.3d 846 (9th Cir. 2005), the presence of just one factor concerning potentially significant impacts may be sufficient to require an EIS. Plaintiff’s motion at 28. But both the context and intensity of impacts must be sufficient to trigger an EIS and, as explained below, this is not the case. Ocean Advocates, 402 F.3d at 865 (“The regulations give [“significantly”] two components: context and intensity”). B. IBLA reached a rational ruling that BLM was neither arbitrary nor capricious in finding that an EIS was not required for the TMP under NEPA. In its 2014 remand ruling, IBLA addressed the NEPA issues this Court identified in its April 2011 ruling. RAR 22320-27; ECF 103 at 40-41, 42 (discussion of NEPA issues to be remanded). IBLA’s detailed ruling extensively cites the parties’ briefing and the administrative record, and its Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 60 of 75 Page 51 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK interpretation of NEPA is neither arbitrary nor capricious. RAR 22327-41.6 As IBLA concluded, BLM’s decision was rational to use an EA, not an EIS, for the TMP. 1. IBLA’s ruling documented why there was a rational basis for BLM’s TMP finding that the unique characteristics of the geographic area did not require an EIS. IBLA carefully assessed whether the intensity of environmental effects from the TMP decision required an EIS given the unique characteristics of the geographic area. RAR 22334-38. IBLA found that BLM was well aware of all of the land designations related to ecological importance of the area and that BLM took them into account when preparing the TMP EA that was “tiered” to the existing EIS for the Steens Resource Management Plan (“RMP”). RAR 22334. With regard to the intensity of the TMP decision’s effects on wildlife (including sage grouse) in the area, IBLA noted that BLM conferred with the Oregon Department of Fish and Wildlife (“ODFW”) during preparation of the EA, and that ODFW did not express concerns that road densities within the CMPA were affecting wildlife use. RAR 22336, AR 9989. IBLA noted that 6 This Court remanded Plaintiff’s NEPA “connected actions” claim, and IBLA then decided it in BLM’s favor. RAR 22330-32. Plaintiff now concedes this claim. Plaintiff’s motion at 47. Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 61 of 75 Page 52 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK most roads were “primitive roads with infrequent use” with significant seasonal closures which supported the finding that wildlife impacts were of relatively low intensity under NEPA. RAR 22335. See AR 9989, 9965, 9990, 9966. Further, the closure of 104 miles of routes by the creation of the Steens Wilderness created large core unroaded habitat areas. AR 9991, 9997. IBLA also noted that if BLM were to close existing routes to motorized travel, that “would concentrate motor vehicle use on a smaller number of routes, potentially increasing impacts to sage-grouse and other aspects of the human environment.” RAR 22336. And IBLA noted that despite Plaintiff’s notation of problems for sage-grouse range statewide, ODFW found that in the BLM Burns District (which includes the Steens area) the sage-grouse population has been stable with a fluctuating but slightly increasing trend from 1980 to 2010. RAR 22336. With regard to the intensity of the TMP decision’s effects on invasive weeds, IBLA noted that BLM accounted for potential weed spread from vehicle use. The intensity of effects would be low under NEPA, because open routes are more regularly traveled by BLM staff, and new weed introductions are typically discovered early on and treated the year they are introduced before they have a chance to spread to adjacent plant communities. RAR 22337-38. Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 62 of 75 Page 53 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK BLM’s weeds and botany experts confirmed the TMP decision does not threaten environment effects to a significant level with regard to invasive weeds. RAR 2199-203 (declaration of weeds expert Lesley Richman), RAR 2204-07 (declaration of botany expert Douglas Linn). BLM regularly monitors and treats for any noxious weeds found along routes. RAR 2199- 203. The major sources of some infestations are riparian corridors, not routes. Id. Even if more routes were closed, the soil disturbances would long remain, monitoring would become more difficult, and new infestations could more easily expand without detection. Id. Plaintiff relies on its weeds expert Dr. Gelbard, Plaintiff’s motion at 30, but IBLA noted that his opinions did not address the TMP decision and found that BLM had the discretion to rely on its own experts. RAR 22338. Finally, it is notable Plaintiff fails to identify several unique characteristics important to BLM’s full understanding of the CMPA. These include, for example, that more than one-third of the CMPA=s acreage was removed from public motorized travel due to the designation of the Steens Mountain Wilderness in 2000. Moreover, nearly half of Harney County=s tax base comes from ranchers, including those with grazing permits on the CMPA. AR 10021. Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 63 of 75 Page 54 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK 2. IBLA’s ruling documented there was a rational basis for BLM’s TMP findings that there were no highly controversial or highly uncertain environmental effects requiring an EIS. IBLA carefully assessed whether an EIS was required for the TMP because of highly controversial or highly uncertain environmental effects. RAR 22338-41. Its conclusion that an EIS was not required was neither arbitrary nor capricious. IBLA recounted BLM’s findings that the route system at issue had already been in place and BLM had not observed significant effects. RAR 22340. Given the extensive record evidence supporting the existence of the disputed routes, IBLA rejected Plaintiff’s contention of non-existent routes. RAR 22339-40. A proposal is “highly controversial” and may require an EIS if there is a “substantial dispute” about the size, nature, or effect of the major Federal action rather than the existence of opposition to a use. Anderson v. Evans, 371 F.3d 475, 489 (9th Cir. 2004). In Anderson, the court held that an EIS was required when almost all of the scientific experts relied upon in an EA stated that the project’s effects were uncertain or required further study. Id. at 491. By contrast, in Northwest Environmental Defense Center v. National Marine Fisheries Service, 647 F. Supp. 2d 1221, 1249 (D. Or. 2009), the Court Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 64 of 75 Page 55 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK rejected a NEPA “controversy” claim when Plaintiffs did not point “to any comments by biologists or expert state agencies” that argued that the decision was “based on bad scientific evidence.” Here, Plaintiff points to no biologists or agencies indicating that the TMP decision is based on poor science. Plaintiff argues that the TMP decision would have highly controversial and highly uncertain effects due to Plaintiff’s conflicting views of route status and due to multiple form-letter comments from some members of the public. Plaintiff’s motion at 31, 33. But Courts avoid equating opposition (such as form-letter opposition) with a bona fide scientific controversy requiring an EIS. “Otherwise, opposition, and not the reasoned analysis” in an EA, would determine whether an EIS would have to be prepared. “The outcome would be governed by a ‘heckler’s veto.’” Ft. Funston Dog Walkers v. Babbitt, 96 F. Supp. 2d 1021, 1036 (N.D. Cal. 2000) (quoting North Carolina v. Federal Aviation Admin., 957 F.2d 1125, 1133-1134 (4th Cir. 1992). The Ninth Circuit recognizes that even if opponents “cherry pick information and data out of the administrative record,” that does not mean that a project is highly uncertain under NEPA. Native Ecosystems Council v. Forest Service, 428 F.3d 1233, 1240 (9th Cir. 2005). Here, IBLA appropriately recognized that BLM’s use of an EA was Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 65 of 75 Page 56 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK reasonable. The case law is illustrative. For example, in Humane Society of the United States v. Locke, 626 F.3d 1040, 1057 (9th Cir. 2010), plaintiffs argued that lethal removal of sea lions at the Bonneville Dam was so controversial as to require an EIS under NEPA. The Ninth Circuit rejected this argument. The court noted that a marine mammal commission had criticized aspects of the agency’s EA. Nevertheless, the agency “acted reasonably in concluding that the Commission=s concerns did not make the agency’s action highly controversial within the meaning of the NEPA regulations.” Id. at 1057. Similarly, this Court recently held that operations at proposed chromite mine sites did not threaten uncertain and highly controversial effects requiring preparation of an EIS under NEPA. Olenec v. National Marine Fisheries Service, 765 F. Supp. 2d 1277, 1286 (D. Or. 2011). As Olenec noted, although an agency must under NEPA discuss the adverse impacts of a project, “such information does not automatically make the project controversial or highly uncertain.” Id. (citing Native Ecosystems Council v. U.S. Forest Service, 428 F.3d 1233, 1241 (9th Cir. 2005)). The record before IBLA shows that BLM rationally explained how it addressed public participation and reconciled input in reaching its TMP decision. AR 798. NEPA is not a mere vote-counting exercise and BLM Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 66 of 75 Page 57 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK acknowledged the range of comments. AR 784-789. Just because one advocacy group is skilled at rallying members, it does not take away from the detailed input expressed by others, including the support for BLM’s TMP decision from the key Steens Mountain Advisory Council, a multi-interest panel established by the Steens Act itself. See AR 783, AR 12434 (STM 1340), AR 12434 (STM 1344). There is a world of difference between the TMP decision and the agency action in National Parks & Conservation Ass’n v. Babbitt. In that case, relied on heavily by Plaintiff, a federal land agency decided to increase the number of cruise ships that could enter an Alaska national park. 241 F.3d 722, 732- 33 (9th Cir. 2001). The agency admitted that it did not know the effects this would bring on wildlife and pollution and the court held that an EIS was required, given this high level of uncertainty. Id. Here, BLM rationally found that the TMP decision is not a major change from the status quo, and it found no highly uncertain effects on wildlife and other resources from the decision. As BLM concluded, the TMP decision “would not result in an appreciable change from current use of motorized and nonmotorized travel routes, and a significant effect on travel in the CMPA would not occur.” AR 791. Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 67 of 75 Page 58 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK C. Plaintiff fails to establish that BLM was arbitrary and capricious in finding that an EIS was not required for the CRP under NEPA. In reaching its CRP decision in April 2015, BLM reached a rational finding that explained why none of the NEPA “intensity factors” -- including those three factors addressed the prior year in the IBLA ruling on the TMP decision -- required an EIS. CRP AR 1521-30. The CRP administrative record supports this finding. The record shows, for example, that BLM explained in detail, with references to published science, why the CRP would not have any significant effects on sage-grouse. CRP AR 2620, 2640-41. Plaintiff’s motion is scant on references to the CRP administrative record to support its argument that an EIS was required. To establish a supposed high level of controversy for the CRP decision, for example, Plaintiff cites only a single-page 2010 email from one person. Plaintiff’s motion at 32 (citing CRP AR 6995). And regarding its supposed contention that the CRP decision’s supposedly highly uncertain effects required an EIS, Plaintiff cites simply the first page from BLM’s Finding of No Significant Impact. Plaintiff’s motion at 34. These bare arguments do not undermine the presumptively valid CRP decision. Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 68 of 75 Page 59 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK Plaintiff suggests that an EIS was required with the CRP, because BLM did not provide updated numbers or further review on weed infestations from what was in the IBLA record. Plaintiff’s motion at 30, 31. But Plaintiff fails to point to any significant new information on infestations that BLM needed to disclose, much less any information rising to the level of mandating an EIS regarding weeds. Nor does Plaintiff establish how that would change BLM’s expert opinion that closed routes hurt its ability to effectively respond to infestations. RAR 2202. Instead, in its 2015 comments, Plaintiff opined only that sage-grouse effects required an EIS. CRP AR 1401. But see CRP AR 2620, 2640-41. The CRP decision addressed a modest array of already-existing but remote and lightly-traveled motorized routes. The CRP decision has an even smaller “footprint” than that of the 2007 TMP decision. See CRP AR 1432-47 (listing and describing BLM’s decisions regarding a modest mileage tally of known routes). BLM was neither arbitrary nor capricious in using an EA. Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 69 of 75 Page 60 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK D. IBLA properly found in 2014 that BLM adequately assessed the environmental baseline under NEPA. On remand from this Court, IBLA addressed Plaintiff’s NEPA baseline argument, and provided a rational explanation for rejecting it against the BLM’s TMP. RAR 22327-30. Plaintiff complains that BLM did not “seriously” consider the inventory data that it supplied. Plaintiff’s motion at 26. But as IBLA explained, the TMP EA formulated and fully considered Alternative C which was based in large part on Plaintiff’s route inventory and TMP recommendations. RAR 22330; AR 9953, 9963, 9967-68. BLM’s EA accurately described the environmental baseline in noting the primitive conditions of the existing CMPA routes, AR 9968-69, and their infrequent use. AR 9988. The EA notes that “[m]ost miles of roads in the CMPA are primitive (Level 2) and are maintained more by use than by equipment.” Id. The TMP made clear that these primitive routes provide access for private lands, grazing, recreation, and land management. AR 9955. BLM presented public concerns on a variety of topics, including that historical levels of access should be retained, motorized vehicle use should be reduced, and specific routes should be closed. AR 9954. BLM fully discussed Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 70 of 75 Page 61 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK public comment, including assertions that Historical and Obscure routes could damage wilderness characteristics, AR 786, and assertions that the TMP maps “show routes that never existed as roads.” AR 788. See AR 784- 89 (describing comments and providing responses). An EA is a “concise public document” that serves to “briefly provide” sufficient evidence and analysis for determining whether to prepare an EIS. 40 CFR § 1508.9. An EA must include “brief discussions” of the purpose and need for the proposal, alternatives, and impacts. 42 U.S.C. § 4332(2)(E), 40 C.F.R. § 1508.9. But NEPA does not require photographs of each and every route. Plaintiff alleges that BLM’s detailed 2011 route analysis forms only covered a fraction of the routes in the CMPA. Plaintiff’s motion at 27. But in fact, as IBLA found, the BLM forms addressed all of the routes that Plaintiff alleged were nonexistent. RAR 22329-39 fn. 70. As IBLA noted, Plaintiff failed to identify additional disputed routes until its remand reply, and then “provided no route numbers or other location data.” Id. Moreover, BLM’s inventory documentation informed the IBLA’s 2014 ruling and affirmed the essence of the TMP’s baseline. IBLA rationally found that “routes that are obscure are not by definition nonexistent” and it found Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 71 of 75 Page 62 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK “no inherent inaccuracy in BLM’s report that such routes exist.” RAR 22328. Plaintiff argues that the 2011 route forms were “in office” and too late for the NEPA analysis. But the analysis forms illustrate what BLM already accurately explained in the TMP EA and TMP decision -- the primitive conditions of most CMPA routes and their infrequent use. E. BLM supplied an accurate environmental baseline underlying the 2015 CRP decision. In reaching the April 2015 CRP decision, BLM supplied an accurate environmental baseline. In light of IBLA’s 2014 ruling, BLM revised its CRP EA to reflect the change represented by IBLA’s decision reinstating Obscure Routes – and invited public input. See, e.g., CRP AR 2370. Moreover, for each of the Obscure Routes that BLM addressed in the CRP decision, BLM’s pre-decision record includes route-by-route information explaining the existence and utility (or lack thereof) for each route. See CRP AR 2715-892 (route analysis documents), 1489-99 (BLM’s response to comments, discussing route existence in detail). Informed by its detailed route analysis work, the CRP decision provided a detailed explanation for each route the BLM considered for closure but left open. CRP AR 1447-48. NEPA does not require that the route status information provided by Plaintiff be set forth in the EA “so long as BLM addressed that information in the course of Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 72 of 75 Page 63 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK considering the likely environmental impacts of designating the routes as open to motorized travel.” RAR 22330. Here, BLM’s response to comments accompanying its CRP decision showed that it considered Plaintiff’s input. CRP AR 1474-506. Plaintiff’s sole argument that the CRP violated NEPA regarding the environmental baseline is based on an inappropriate extra-record, post- decisional declaration. See Plaintiff’s motion at 27. Plaintiff also fails to establish how NEPA requires that all agency photos be provided for public comment – or that NEPA requires photos in the first place to establish an adequate baseline. There is nothing irrational about BLM’s choice to expand its administrative record, after public comments, to better inform its ultimate decision. CONCLUSION For these reasons, this Court should deny Plaintiff’s motion and grant Defendants’ cross-motion for summary judgment against all of Plaintiff’s claims. Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 73 of 75 Page 64 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK Respectfully submitted this 2nd day of June, 2017. BILLY J. WILLIAMS United States Attorney /s/ Sean E. Martin SEAN E. MARTIN Assistant U.S. Attorney Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 74 of 75 Page 65 - DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT/IN RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ONDA v. McDaniel, et al.; Case No. 3:09-CV-00369- PK CERTIFICATE OF COMPLIANCE The foregoing memorandum complies with the applicable word-count limitation in this Court’s order allowing this over-length filing (ECF 299), because it contains 13299 words, including headings, footnotes, and quotations, but excluding the caption, tables of cases and authorities, glossary, key to administrative record prefixes, signature block, and the certificate of counsel. s/ Sean E. Martin SEAN E. MARTIN Case 3:09-cv-00369-PK Document 304 Filed 06/02/17 Page 75 of 75