Oregon Natural Desert v. Bureau of Land Management

531 F.3d 1114

OREGON NATURAL DESERT ASSOCIATION; Committee for the High Desert; Western Watersheds Project, Plaintiffs-Appellants, v. BUREAU OF LAND MANAGEMENT; Elaine M. Brong, State Director, Oregon/Washington BLM; Tom Dabbs, Field Manager, Malheur Resource Area, BLM; Jerry Taylor, Field Manager, Jordan Resource Area, BLM, Defendants-Appellees.

No. 05-35931.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 8, 2007.

Filed July 14, 2008.

Peter M. "Mac" Lacy (argued), of the Oregon Natural Desert Association, Portland, OR, Laurence J. "Laird" Lucas, Boise, ID, and Stephanie M. Parent, of the Pacific Environmental Advocacy Center, Portland, OR, for the plaintiffs-appellants.

David Shilton (argued), Todd S. Aagard, Matthew J. Sanders, and Sue Ellen Wooldridge, of the U.S. Department of Justice, Washington, DC, Karen J. Immergut, and Stephen J. Odell, of the U.S. Attorney of Oregon, Portland, OR, and Mariel J. Combs, of the U.S. Department of the Interior, Office of the Regional Solicitor, Portland, OR, for the defendants-appellees.

Appeal from the United States District Court for the District of Oregon; Anna J. Brown, District Judge, Presiding. D.C. No. CV-03-01017-JJ.

Before: RAYMOND C. FISHER and MARSHA S. BERZON, Circuit Judges, and JUDITH M. BARZILAY, Judge.^*

BERZON, Circuit Judge:

The Bureau of Land Management (the "BLM" or the "Bureau") is charged with managing "the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people." 43 U.S.C. § 1702(c); see also id. § 1712(a), (c). That task, which the Supreme Court has characterized as "enormously complicated," Norton v. Southern Utah Wilderness Alliance ("SUWA"), 542 U.S. 55, 58, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004), requires careful planning.

The issue in this case is whether the BLM complied with the requirements of the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321 et seq., when it developed a land use plan covering a large portion of Oregon. The Oregon Natural Desert Association, Committee for the High Desert, and Western Watersheds Project (collectively "ONDA") contend that the BLM has not done so because it has failed (1) properly to analyze the effects of the plan on lands under its control possessing "wilderness characteristics"; and (2) properly to analyze management options for grazing and off-road vehicle use throughout the region covered by the plan. The district court granted summary judgment for the BLM. We reverse and remand to the district court with instructions to remand to the Bureau.

I. Background

A. The Physical and Legal Landscape

1. Southeastern Oregon

The BLM-managed land at issue (which we will sometimes refer to as the "planning area") spreads over roughly four and a half million acres of rugged, remote land in southeastern Oregon's Malheur, Grant, and Harney Counties. These lands lie in the rain shadow of the Cascade and Coastal ranges, and so are sunny and semi-arid. The sagebrush plains that characterize the region are varied by high mountains, rising to over 8,000 feet, and by the valleys of the Malheur and Owyhee rivers.

A similar landscape (not at issue in this appeal) extends into Idaho to the east. We have described that region, in terms equally applicable to the Oregon lands, as "[s]tartling in its ecological diversity, from arid sagebrush desert to lush juniper woodlands," and as including "spectacular and wild canyonlands" along the Owyhee river. Idaho Watersheds Project v. Hahn, 307 F.3d 815, 821 (9th Cir.2002).

It is not simply the landscape that marks the planning area. The area is also home to tens of thousands of people who live and work in this dry and demanding territory. European settlement of the region began as immigrants moved west over the Oregon Trail and intensified with the discovery of gold in the Owyhee Mountains in the 1860s, bringing miners and ranchers into the landscape. Today, about 30,000 people live in Malheur County, which makes up the bulk of the planning area. Although the service and outdoor recreation industries are growing significantly, farming and ranching still drive the economy. The old mines are largely tapped out and do not employ many people, and portions of the range were degraded in the early years of settlement. These days, Malheur County's economic indicators are significantly below statewide averages for Oregon, and a sizable portion of the population is below the poverty line.

Federally owned land makes up a large portion of the region, giving the BLM an important role. Its land use planning choices influence both the unique and irreplaceable natural resources of the planning area and the local economy, which is strongly tied to the outdoors. The choices available to the BLM are governed in large part by three statutes of central relevance to this appeal: the Federal Land Policy and Management Act, the Wilderness Act, and the National Environmental Policy Act. We discuss each statute in turn.

2. Federal Land Management

a. The Federal Land Policy and Management Act

The BLM's land management authority is defined by the Federal Land Policy and Management Act of 1976 (the "FLPMA"), 43 U.S.C. §§ 1701 et seq. Although the BLM existed before the passage of the FLPMA, see 43 U.S.C. § 1731(a), its role was extensively revised by that statute, which, among other changes, establishes systems for information gathering and land use planning.

The FLPMA directs that the Secretary of the Interior, who oversees the BLM, "shall, with public involvement ..., develop, maintain, and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands." Id. § 1712(a); see also SUWA, 542 U.S. at 58-60, 124 S.Ct. 2373 (describing the land use planning process).¹ Among other requirements, these plans are to "use and observe the principles of multiple use and sustained yield";² "use a systematic interdisciplinary approach"; "give priority to the designation and protection of areas of critical environmental concern"; and "weigh long-term benefits to the public against short-term benefits." 43 U.S.C. § 1712(c). The BLM "shall manage the public lands" in accordance with these plans. Id. § 1732(a).

To ensure that the BLM has adequate information to perform this task, the FLPMA also directs that:

The Secretary shall prepare and maintain on a continuing basis an inventory of all public lands and their resource and other values (including, but not limited to, outdoor recreation and scenic values), giving priority to areas of critical environmental concern. This inventory shall be kept current so as to reflect changes in conditions and to identify new and emerging resource and other values.

Id. § 1711(a). The BLM, in other words, is obligated to "arrange for resource, environmental, social, economic and institutional data and information to be collected, or assembled if already available." 43 C.F.R. § 1610.4-3. The Bureau is, in particular, to collect "[n]ew information and inventory data [that] will emphasize significant issues and decisions with the greatest potential impact." Id. Land use plans are to "rely, to the extent it is available, on the inventory of the public lands, their resources, and other values." 43 U.S.C. § 1712(c)(4). An extensive public comment process also provides information for the formulation of BLM land use plans. See 43 C.F.R. § 1610.2 (discussing public participation).

The land use plans thus developed guide "[a]ll future resource management authorizations and actions ... and subsequent more detailed or specific planning, shall conform to the approved plan[s]." Id. § 1610.5-3. After a land use plan is approved, "[a]ny person who participated in the planning process and has an interest which is or may be adversely affected by the approval or amendment of a resource management plan may protest such approval or amendment." Id. § 1610.5-2(a). Once the Director of the BLM has ruled on any protest, the decision is final and the plan may be adopted. Id. § 1610.5-2(a)(3), (b).

b. The Wilderness Act and the FLPMA

Among the resources to be managed on federal lands, lands with statutorily-defined wilderness characteristics are of particular importance. Congress identified the conservation of such lands as a national priority in the Wilderness Act of 1964 (the "Wilderness Act"), 16 U.S.C. §§ 1131 et seq. See also Wilderness Soc'y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1055-56 (9th Cir.2003) (en banc) (describing the passage of the Wilderness Act). The FLPMA, which was enacted later, interacts with the Wilderness Act to provide the BLM with broad authority to manage areas with wilderness characteristics contained in the federally owned land parcels the Bureau oversees, including by recommending these areas for permanent congressional protection.

The Wilderness Act is intended to "assure that an increasing population, accompanied by expanding settlement and growing mechanization, does not occupy and modify all areas within the United States and its possessions, leaving no lands designated for preservation and protection in their natural condition." 16 U.S.C. § 1131(a). A "wilderness" is defined, "in contrast with those areas where man and his own works dominate the landscape," as:

an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. An area of wilderness is further defined to mean in this chapter an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding opportunities for solitude or a...