Nat'l Trust for Historic Pres. v. Suazo

National Trust for Historic Preservation, et al., Plaintiffs, v. Raymond Suazo, et al., Defendants.

No. CV-13-01973-PHX-DGC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

March 27, 2015

ORDER

This case involves the Bureau of Land Management's decision to allow recreational target shooting throughout the Sonoran Desert National Monument. Plaintiffs claim that this decision will lead to irreversible damage to the diverse wildlife and precious artifacts of the Monument. Plaintiffs claim that Defendants have violated their duty under the Federal Land Policy and Management Act to protect the Monument, and that Defendants' environmental impact statement fails to comply with the National Environmental Policy Act.

The parties have filed motions for summary judgment. Docs. 32, 35. The motions are fully briefed, and the Court heard oral argument on March 25, 2015. The Court will grant Plaintiffs' motion on two of their claims, vacate the portion of the BLM decision that relates to recreational shooting, and remand that portion to BLM for further consideration in light of this order.

I. Background.

"The President of the United States is authorized, in his discretion, to declare by public proclamation historic landmarks . . . and other objects of historic or scientific interest that are situated upon the lands owned or controlled by . . . the United States to be national monuments[.]" 16 U.S.C. § 431. On January 17, 2001, President Clinton exercised this power and signed a presidential proclamation ("Proclamation") establishing the Sonoran Desert National Monument ("Monument"), which comprises almost 500,000 acres of Southern Arizona. A.R. 870-73; 66 Fed. Reg. 7354.

The President described the Monument as a "magnificent example of untrammeled Sonoran desert landscape" with "distinct mountain ranges separated by wide valleys[.]" A.R. 870. The President noted the "spectacular diversity of plant . . . species," including forests of saguaro cacti, palo verde trees, endangered acuna cacti, and "a variety of herbaceous plants." Id. The Monument also features a wide variety of wildlife, including Sonoran pronghorns, desert bighorn sheep, javelina, Sonoran desert tortoises, and several species of owls. A.R. 871. The President described the Monument's "many significant archaeological and historic sites, including rock art sites, lithic quarries, . . . scattered artifacts," and the Juan Bautista de Anza National Historic Trail. Id.

The President set apart and reserved, "for the purpose of protecting the objects identified above," the specified lands as the Sonoran Desert National Monument. Id. The President directed the "Secretary of the Interior [to] manage the Monument through the Bureau of Land Management, pursuant to applicable legal authorities, to implement the purposes of this proclamation . . . [and to] prepare a management plan that addresses the actions . . . necessary to protect the objects identified in this proclamation." A.R. 872.

On April 24, 2002, the Bureau of Land Management ("BLM") published in the federal register a notice of its intent to prepare a resource management plan ("RMP") and an environmental impact statement ("EIS") for the Monument. A.R. 962.¹ BLM invitedIndian tribes, government agencies, and the public to participate in this process. A.R. 1015-44. BLM received thousands of letters and comments. A.R. 3245-553, 4209-351 ("Scoping Report"). An issue that quickly emerged was how to address the recreational target shooting that was taking place throughout the Monument. A.R. 4090, 4264, 6315. As BLM later put it, "[s]hooting activities including 'target shooting,' 'shooting practice,' 'plinking,' 'sporting clays,' 'skeet',' and 'sighting-in' have been occurring in the [Monument] since firearms were introduced to the region. . . . Increasingly, Arizona's broad public demand for places to shoot is being shifted to public lands managed by the BLM." A.R. 14464-65. BLM decided to evaluate the effects of shooting on Monument objects and the areas where shooting might be appropriate. A.R. 4264-65.

In February of 2005, Professor Pam Foti completed a report for BLM that analyzed the impacts of recreational shooting on the Monument. A.R. 6591. The report found that shooting was occurring on 69 of the 348 sites in the Monument that were surveyed. A.R. 6607. Approximately 28 of these 69 sites had damage to saguaro cacti, with the damage being "extreme" in 16 of the sites. A.R. 6614. Additionally, there was evidence of shooting on approximately 50 percent of the sites within the Monument identified as "extremely" and "heavily" impacted by human activity. A.R. 6619-20. As BLM prepared the Draft RMP and EIS, it continued to analyze and discuss the impacts of and solutions for recreational shooting. A.R. 10939-942, 11302-3950.

In August of 2011, BLM published its Draft RMP and EIS (collectively, the "Draft EIS"). A.R. 14061. The Draft EIS laid out five alternative plans for managing the Monument. A.R. 14096-100, 14146-55; see 40 C.F.R. § 1502.14. With respect to shooting, the alternatives ranged from allowing shooting throughout the Monument to prohibiting it entirely. A.R. 14151-55, 14292. The Draft EIS highlighted a number of concerns arising from recreational shooting in the Monument, including "the health and safety of visitors," "[a]ccumulation of abandoned household refuse used as targets," the "gradual degradation or destruction of natural resources," the use of signage andstructures for targets, and damage to trees and plants. A.R. 14465. The Draft EIS found that allowing recreational shooting throughout the Monument caused moderate impacts to cultural, soil, and water resources, as well as to wilderness characteristics, wildlife, and public safety.² A.R. 15022-61. The Draft EIS noted that during "October-November 2008, the BLM removed 12,000 pounds of debris from recreational target shooting sites adjacent to the northern boundary of the Monument." A.R. 14466.

Appendix G to the Draft EIS included a formal analysis of the effects of recreational shooting. A.R. 15306-339. That "analysis was undertaken to determine areas of the [Monument] where continued recreational target shooting would cause unacceptable impact to the objects for which the [Monument] was designated, as well as to identify areas where such activity is compatible with such objects." A.R. 15306. Based on potential impacts on Monument "objects" - including the "palo verde-mixed cacti vegetation community," the habitat of the Sonoran desert tortoise, and the Juan Bautista de Anza Historic Trail - the first phase of the analysis concluded that 80.2% of the Monument was unsuitable for recreational shooting. A.R. 15314. The analysis then examined the remaining areas of the Monument for the "presence of monument objects," potential safety issues, motor vehicle access, and the suitability of the areas for target shooting. A.R. 15309-16. The analysis concluded "that shooting activity, for reasons of potential impacts to Monument objects, visitor safety, accessibility, and physical suitability of terrain, would likely be limited to one area, the Hidden Valley (C) location." A.R. 15316. Because making this area available for shooting would be impractical, and because "BLM does not compromise on the safety of its visitors," the Appendix G analysis recommended that recreational shooting be prohibited throughout the Monument. Id. The Draft EIS adopted this recommendation. A.R. 14154-55, 14292.³

After publication of the Draft EIS, the required 90-day public comment period began. A.R. 23750. BLM also held eight public meetings. Id. Many persons and organizations submitted comments protesting BLM's decision to ban recreational shooting in the Monument. A.R. 21431-35, 21449, 21500, 21550-51, 21556-68. BLM drafted responses to these comments and planned to stand by its decision to ban shooting throughout the Monument. A.R. 19087 ("No comments received pertaining to target shooting caused us to reconsider the alternatives or the decision in the Proposed Alternative."), 19789, 20153-65 (comments and drafted responses). By April 2012, BLM had prepared the Proposed RMP and Final EIS (collectively, the "Final EIS"), which included the ban on shooting. A.R. 20141-43. The Final EIS had been sent to the printer and provided to the EPA for publication in the Federal Register. A.R. 20142. Then, on April 27, 2012, BLM received a directive from the Washington, D.C. office of the Department of the Interior ("DOI") that the Final EIS must be changed to allow for recreational shooting throughout the Monument. Id.; A.R. 20124-25.

Although it appears that no reason was given by DOI at the time, subsequent BLM documents state that the change resulted from DOI's consultation with the Wildlife and Hunting Heritage Conservation Council, an advisory group established under the Federal Advisory Committee Act, and "feedback from the National Rifle Association and local shooting enthusiasts in support of keeping the monument open for recreational target shooting." A.R. 20175. Nothing in the record cited by the parties suggests that the change resulted from an evaluation of the information and data collected in the Draft EIS or the Final EIS.

Some BLM employees thought the DOI directive was not consistent with the Proclamation's mandate to protect Monument objects. A.R. 20124, 20127. Nevertheless,in June of 2012, BLM published the Final EIS with the change. A.R. 20278. Identifying recreational shooting as an "important recreational activity" in the Monument for which "use has increased dramatically during the past five years," the Final EIS announced that recreational shooting would be allowed throughout the Monument. A.R. 20382-83; 20574. To mitigate the damage that shooting was causing to Monument objects, the Final EIS outlined "a comprehensive suite of administrative actions and best management practices." A.R. 20383. These included coordinating with the shooting community...