South. Utah Wilderness All. v. Bureau of Land Man.

147 F.Supp.2d 1130

SOUTHERN UTAH WILDERNESS ALLIANCE and the Sierra Club, Plaintiffs, v. BUREAU OF LAND MANAGEMENT; San Juan County, Utah, Ty Lewis, San Juan County Commissioner; Kane County, Utah; Garfield County, Utah Defendants.

No. 2:96-CV-836C.

United States District Court, D. Utah, Central Division.

June 25, 2001.

COPYRIGHT MATERIAL OMITTED

Robert B. Wiygul, Earthjustice Legal Defense Fund, Denver, CO, Heidi J. McIntosh, Southern Utah Wilderness Alliance, Salt Lake City, UT, Jerome L. Epstein, Elena Nicole Broder, Elizabeth Appel Blue, Jenner & Block, Washington, DC, for Southern Utah Wilderness Alliance.

Jill N. Parrish, Bill Ryan, Stephen J. Sorenson, Daniel D. Price, Jeannette F. Swent, U.S. Atty's Office, Washington, DC, for U.S., Bureau of Land Management, U.S. Dept. of Interior.

Stephen G. Boyden, Utah Atty General's Office, Salt Lake City, UT, for State of Utah, Utah School and Institutional Trust Lands Admin.

Allen K. Young, Young, Kester & Petro, Springville, UT for Robert G. Reeves, James W. Reeves, Ross E. Brannian.

Ronald W. Thompson, Stephen H. Urquhart, Thompson Awerkamp & Urquhart LC, St. George, UT, Craig C. Halls, San Juan County Atty,

Ronald W. Thompson, Stephen H. Urquhart, Elizabeth B. Grimshaw, Thompson Awerkamp & Urquhart LC, St. George, UT, Craig C. Halls, San Juan County Atty, Monticello, UT, for San Juan County.

Eric D. Petersen, Washington County Atty's Office, St. George, UT, Colin R. Winchester, Kane County Atty, Kanab, UT, for Norman Carroll, Joe Judd, Stephen Crosby.

Wallace A. Lee, Garfield County Atty., Panguitch, UT, Ronald W. Thompson, Stephen H. Urquhart, Barbara G. Hjelle, Thompson Awerkamp & Urquhart LC, St. George, UT, for Louise Liston, D. Maloy Dodds, Clare M. Ramsay, Garfield County.

ORDER

CAMPBELL, District Judge.

This matter is before the court on Plaintiffs Southern Utah Wilderness Alliance and The Sierra Club's (hereinafter "Plaintiffs") motion for summary judgment.¹ Plaintiffs seek declaratory and injunctive relief barring further road construction² by Defendants San Juan County, Kane County, and Garfield County (hereinafter "the Counties") across federal Bureau of Land Management (hereinafter "BLM") land in southern Utah. The Counties contend that they have previously perfected rights-of-way in those areas and are thus legally entitled to build the roads. The facts are set forth in the parties' pleadings and will not be repeated except as necessary to explain the court's decision. For the reasons set forth below, the court GRANTS Plaintiffs' motion for summary judgment.

I. R.S. 2477

The Counties assert that they have perfected rights-of-way across the disputed areas in accordance with Revised Statute 2477 ("R.S.2477"). R.S. 2477, initially passed as part of the Mining Act of July 26, 1866, reads: "And be it further enacted, that the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." 43 U.S.C. § 932 (repealed); R.S. 2477. "According to regulations written by the Department of the Interior and, after 1946, the Bureau of Land Management, a[n R.S. 2477] right-of-way could be obtained without application to, or approval by, the federal government." Sierra Club v. Hodel, 848 F.2d 1068, 1078 (10th Cir.1988), overruled on other grounds, Village of Los Ranchos De Albuquerque v. Marsh, 956 F.2d 970, 973 (10th Cir.1992). R.S. 2477 roads are "major components of the transportation systems in most western states." Hodel, 848 F.2d at 1078.

In 1976, Congress passed the Federal Land Policy Management Act ("FLPMA"). See 43 U.S.C. § 1763. FLPMA departs from the earlier policy of giving away federal lands in favor of a policy of sound management of federal lands. Since the passage of FLPMA, a right-of-way on federal land must be granted by the BLM, which must base its decision on considerations of "national and State land use policies, environmental quality, economic efficiency, national security, safety and good engineering and technological practices." 43 U.S.C. § 1763. Accordingly, FLPMA "repeals R.S. 2477 and its open-ended grant of rights-of-way over public lands while explicitly protecting R.S. 2477 rights-of-way in existence on the date of the FLPMA's passage." Hodel, 848 F.2d at 1078 (10th Cir.1988). R.S. 2477 rights-of-way which were perfected prior to 1976, therefore, are valid even after the repeal of R.S. 2477.

II. Administrative Background

On May 11, 1998, the court ruled that the Counties' maintenance and use of legitimate R.S. 2477 rights-of-way would not constitute trespass onto federal lands. See SUWA v. BLM, No. 96-836, slip op. at 2-3 (D.Utah May 11, 1998) (Sam, J.). The court then stayed this case pending an administrative determination by the BLM as to the validity and scope of the claimed R.S. 2477 rights-of-way. (See id. at 3.)

The BLM proceeded to conduct an informal administrative adjudication. This informal adjudication began with a public notification process. The BLM then considered several forms of evidence, including information submitted by the parties and the public, interviews, field inspections, maps, federal and local public land records, wilderness inventory records, BLM records, and aerial photographs. (See BLM R.S. 2477 Administrative Determination(s) for Garfield, San Juan, and Kane Counties (hereinafter "Admin. Determination") at Table of Contents, "Evidence Related to Construction and Highway".) Before reaching a decision, the BLM published notice of its draft determinations and accepted additional public comment. The BLM process did not, however, include a hearing featuring live testimony or cross-examination. On July 9, 1999, the BLM found that, with one exception (the Skutumpah Road in Kane County), the rights-of-way claimed by the Counties are not valid R.S. 2477 rights-of-way.

III. Review of informal agency action

A. Standard of review

When an interested person objects to agency action made during an informal adjudication (one not conducted on the record after the opportunity for an agency hearing), the agency action is typically reviewed under an "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" standard. Friends of the Bow v. Thompson, 124 F.3d 1210, 1215 (10th Cir.1997), quoting 5 U.S.C. § 706(2)(A). In determining whether the agency acted in an "arbitrary and capricious" manner, a reviewing court "must ensure that the agency `decision was based on a consideration of the relevant factors' and examine `whether there has been a clear error of judgment.'" Friends of the Bow, 124 F.3d at 1215, quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Generally, an agency decision will be considered arbitrary and capricious if

the agency had relied on factors which Congress had 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, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983), quoted in Friends of the Bow, 124 F.3d at 1215; accord Colorado Envtl. Coalition v. Dombeck, 185 F.3d 1162, 1167 (10th Cir.1999).

In addition to requiring a reasoned basis for the agency's decision, "arbitrary and capricious" review requires that agency action be supported by facts found in the administrative record as a whole. See Arkansas v. Oklahoma, 503 U.S. 91, 108, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992), cited in Koch v. United States Dept. of the Interior, 47 F.3d 1015, 1018 (1995); Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1575 (10th Cir.1994). The Tenth Circuit has interpreted this as requiring that an agency action be supported by "substantial evidence." Id. "Evidence is substantial in the APA sense if it is `enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion to be drawn is one of fact.'" Id., quoting Illinois Central R.R. v. Norfolk & W. Ry., 385 U.S. 57, 66, 87 S.Ct. 255, 17 L.Ed.2d 162 (1966). "`Substantial evidence' is more than a mere scintilla; it must be such relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Olenhouse, 42 F.3d at 1581. "Evidence is not substantial if it is overwhelmed by other evidence ... or if it constitutes mere conclusion." Id. (citations omitted). This "substantial evidence" standard does not replace the "arbitrary and capricious" standard, but merely describes the type of factual support for an agency decision required under "arbitrary and capricious" review. See id., 42 F.3d at 1575.

B. Review of agency's statutory interpretation

In making its determination, the BLM relied on the Department of the Interior's ("DOI") statutory construction of R.S. 2477. The Counties dispute the BLM's interpretation and claim that the BLM erred in its statutory construction. The court must therefore review both the factual and the legal determinations of the BLM.

When the question before the court involves an agency's interpretation of a statute it administers, the court typically utilizes the two-step approach announced in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), which requires that, where the statute is silent or ambiguous with regards to the interpretation of disputed terms, the court should give deference to reasonable agency interpretations of the statute. See id. at 842-43, 104 S.Ct. 2778. Here, however, the DOI Secretary's statutory interpretation of R.S. 2477 appears in informal policy statements and opinion letters, rather than a formal rule or regulation. (See Letter from DOI Deputy Solicitor Frederick Ferguson to Assistant Attorney General James Moorman of ...