SUSAN ILLSTON, District Judge.
Plaintiffs are eleven environmental organizations
Plaintiffs' claims arise out of the BLM's approval of three land management plans that amend the California Desert Conservation Area Plan of 1980, the land use plan governing the CDCA: the West Mojave ("WEMO") Plan; the Northern and Eastern Mojave ("NEMO") Desert Management Plan, and the Northern and Eastern Colorado ("NECO") Desert Coordinated Management Plan. With respect to the WEMO Plan, plaintiffs claim that the BLM's designation of an extensive "Off-Highway Vehicle" ("OHV") route network throughout the WEMO planning area violates the Federal Land Policy and Management Act of 1976 ("FLPMA"), 43 U.S.C. §§ 1701-85. Plaintiffs also claim that the Final Environmental Impact Statement and Report for the West Mojave Plan ("FEIS") prepared for the WEMO Plan violates the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321 et seq. Finally, plaintiffs claim that Biological Opinions ("BiOps") issued by the U.S. Fish and Wildlife Service for the WEMO, NEMO and NECO Plans do not comply with the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-44, and that all three management plans imperil the desert tortoise and the Lane Mountain milk-vetch.
The Court recognizes the complexity of the issues presented in this case, and that defendants have been given the difficult task of addressing the interests and needs of OHV recreationists while at the same time protecting listed species as required by law. In deciding the pending summary judgment motions, the Court has been mindful that its review is "narrow" but "searching and careful," Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989), and that the Court will "reverse a decision as arbitrary and capricious only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered
In summary, after careful consideration of the parties' papers and the arguments of counsel, as well as of the voluminous administrative record, the Court concludes the BLM violated the FLPMA and the NEPA in numerous respects, but that defendants complied with their obligations under the ESA. With regard to FLPMA, the BLM's route designation process—insofar as that process is documented in the administrative record—did not comply with regulations mandating that the BLM consider various "minimization criteria" when designating OHV routes. In addition, because the WEMO Plan authorizes numerous OHV routes that were not in existence in 1980, the WEMO Plan is inconsistent with the governing CDCA land use plan, which limits OHV routes to those existing in 1980. With regard to NEPA, the Court concludes that the FEIS is flawed because it does not contain a reasonable range of alternatives to the proposed action, and its discussion of the "no action" alternative is incomplete. However, the Court finds that other aspects of the FEIS comply with NEPA, such as the FEIS's discussion of mitigation measures, and its analysis of some of the impacts of the WEMO Plan.
Turning to the ESA claims and the two BiOps at issue, the Court finds that FWS considered all relevant factors, and that its analyses and conclusions are reasoned and supported by the record. The BiOps explain in detail why FWS concluded that the WEMO and NECO Plans would not jeopardize the continued existence of the desert tortoise and the Lane Mountain milk-vetch, as well as why those plans would not destroy or adversely modify designated critical habitat of the desert tortoise. The Court also finds that the amended Incidental Take Statements ("ITSs") for both BiOps comply with the law.
The FLPMA, 43 U.S.C. §§ 1701-1785, declares that public lands must be managed for multiple uses in a manner that will protect the quality of the scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values, but also provides for outdoor recreation and human occupancy and use. See 43 U.S.C. § 1701(a)(7) & (8).
As part of FLPMA, Congress designated 25 million acres of southern California as the CDCA. 43 U.S.C. § 1781(c). Congress declared in FLPMA that the CDCA is a rich and unique environment teeming with "historical, scenic, archeological, environmental, biological, cultural, scientific, educational, recreational, and economic resources." Id. Congress found that this desert and its resources are "extremely fragile, easily scarred, and slowly healed." Id. For the CDCA and other public lands, Congress mandated that the BLM "shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands." Id. § 1732(b).
Of particular relevance to this case are regulations addressing OHV
43 C.F.R. § 8342.1(a)-(d). These route designation criteria are referred to by the parties and throughout this order as the "minimization criteria."
The NEPA requires federal agencies to analyze the environmental impacts of a proposed action before proceeding with that action. See 42 U.S.C. § 4332(2)(C). Under NEPA and the regulations promulgated thereunder by the Council on Environmental Quality ("CEQ"), federal agencies must prepare and circulate to the public a comprehensive environmental impact statement ("EIS") so that the environmental impacts can be considered and disclosed to the public during the decision-making process. See 40 C.F.R. §§ 1501.2, 1502.5. In the EIS, the agency must identify direct, indirect, and cumulative impacts of the proposed action, consider alternative actions (including the alternative of taking no action) and their impacts, and identify all irreversible and irretrievable commitments of resources associated with the action. See 42 U.S.C. § 4332(2); 40 C.F.R. § 1502.14(d).
Congress enacted the ESA to protect and conserve endangered and threatened species. 16 U.S.C. § 1531(b). "Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any
Congress also directed the Secretary to develop and implement recovery plans to provide guidance for the long-term objective of removing species from the list of endangered or threatened species. 16 U.S.C. § 1533(f)(1). In 1994, the Secretary prepared a recovery plan for the desert tortoise.
In establishing the CDCA, Congress declared that the California desert is a "total ecosystem that is extremely fragile, easily scarred, and slowly healed," and that it is a rich and unique environment with "historical, scenic, archaeological, environmental, biological, cultural, scientific, educational, recreational, and economic resources." 43 U.S.C. § 1781(a)(1)-(2). Congress also stated that "the use of all California desert resources can and should be provided for in a multiple use and sustained yield management plan to conserve these resources for future generations, and to provide present and future use and enjoyment, particularly outdoor recreation uses, including the use, where appropriate, of off-road recreational vehicles." Id. § 1781(a)(4).
The CDCA contains approximately 25 million acres of land, of which the BLM administers slightly less than one-half. AR 221935. The WEMO and NECO Plan
A central issue in this case relates to the designation of OHV routes in portions of the CDCA. In 1982,
AR 222005 (emphasis added). Somewhat confusingly, in addition to OHV areas being designated as "open," "closed," or "limited," OHV routes could also be designated as "open," "closed," or "limited." Id. "Open" routes were open to OHVs, generally without restriction; "closed" routes prohibited OHV use except for certain official, emergency or otherwise authorized vehicles; and "limited" routes permitted OHVs, subject to limitations on the number and types of vehicles allowed, as well as restrictions on time or season and speed limits. AR 222005-222006. The CDCA Plan provided special management considerations for OHV use on washes, sand dunes and dry lakes. AR 222006.
Although the CDCA Plan defines "existing routes" as those established before approval of the 1980 CDCA Plan and provides a description of the characteristics of those routes, there was no complete inventory of routes existing in 1980 when the plan was adopted. AR 230282. The original 1980 plan relied on vehicle access information depicted on motorized vehicle interim access guides based on data from at least 1973 in identifying an interim route management program. AR 222009. When the 1980 CDCA Plan was approved, the interim designations became effective. Id. In 1982 when the CDCA Plan was amended, the BLM replaced those interim
After the CDCA Plan was amended in 1982, the BLM began the process of creating an inventory of existing OHV routes using aerial photographs from 1979 and, where available, U.S. Geological Survey base maps. AR 230283. The BLM concluded that "the photo coverage, in and of itself, was not [an] adequate means of identifying all existing routes." Id.
AR 202199; see also AR 230278-230795 ("1985 and 1987 Route Designations: Barstow and Ridgecrest Resource Areas").
In addition to the 1985-1987 OHV route designations, between 1982 and 1994 BLM designated 317 miles of OHV routes within each of the 20 ACECs in the WEMO Plan area. AR 202199-202202. Because these routes, referred to as the "ACEC routes," were designated separately from the 1985-1987 OHV routes, the ACEC routes did not always connect seamlessly to the 1985-1987 network. AR 201843.
The WEMO Plan establishes a 5,098 mile OHV route network in the WEMO Plan area, and a significant portion of these routes are derived from the 1985-1987 OHV routes, as well as the ACEC routes. AR 201843. The background leading up to the WEMO OHV route network is long and complicated, but a full recounting is necessary to understanding the claims and issues in this case.
In 1995, BLM staff in the Barstow Field Office designated an emergency OHV route network for the Ord Mountain planning unit due to a "noted increase in regional route proliferation, concern for desert tortoises within the designated Ord Mountain Desert Tortoise Critical Habitat Unit [], and other at-risk natural resources." AR 221204. According to the record, the emergency designation involved only limited public input, and "[a] consensus emerged between BLM and representatives of several interest groups, that a 100 percent vehicle route inventory, as well as a higher level of public involvement, was needed." Id. As a result, the BLM began a pilot route designation program in the Ord Mountain planning unit. The pilot program used an inventory based on air photos and ground verification. AR 221205. The results of the pilot program were examined in an Environment Assessment published in January 2000, AR 221195, and were later incorporated into a larger Western Mojave Desert Off Road Vehicle Designation Project. The Western Mojave Desert Off Road Vehicle Designation Project was the subject of a 2003 Environmental Assessment ("2003 EA"), and was ultimately approved by the BLM and incorporated into the CDCA. The 2003 EA, and the BLM's decision to approve the 2003 EA, played a significant role in the BLM's OHV route designation process and profoundly affected the OHV route network adopted in the WEMO plan. The 2003 EA is discussed in greater detail infra. AR 211390.
Between June and August 1998, the BLM met in Barstow (in an office known
According to the declaration of William Haigh,
On November 3, 1999, the WEMO Plan "Supergroup," consisting of representatives of over 100 jurisdictions, agencies and non-governmental agencies, and private individuals, established four task groups to prepare the WEMO Plan. AR 221532-221538. The WEMO project manager, Haigh, recommended a new on-the-ground field survey of OHV routes and route designations, and various stakeholders agreed. The resulting effort became the Western Mojave Desert Off Road Vehicle Designation Project.
The BLM first divided the entire WEMO region into three general groups comprised of (1) twenty-one sub-regions, (2) the existing ACECs, and (3) remaining areas with routes designated in 1985-1987. AR 201830, 211393-211394. Eleven of the twenty-one sub-regions were selected for "redesign" based in part on the designation of the desert tortoise and Lane Mountain milk-vetch as threatened and endangered species. AR 201832. Nine of the eleven selected sub-regions were redesigned using the "Decision Tree" process discussed in detail below.
The BLM retained the consulting firm CH2M Hill to conduct on-the-ground surveys in ten of the eleven redesign sub-regions using GPS equipment; those surveys occurred between September 2001 and March 2002.
The BLM further divided the surveyed redesign sub-regions into Motorized Access Zones ("MAZs") which possessed similar "issues" and "goals" as defined by the BLM. AR 211396-211403. The "issues" include some mentioning of biological resources other than the desert tortoise. See, e.g., AR 211399 ("location of very rare Kern buckwheat."). Under "goals," almost every MAZ lists the elimination of redundant routes, several list "minimize land-use conflicts," and three MAZs cite 43 C.F.R. § 8342.1 specifically.
For the non-redesign areas, the record contains much less information about the process used to evaluate OHV routes. The 2003 EA states:
AR 211405. The 2003 EA provides five specific examples of how route information was updated in different regions. AR 211405-211406. The 2005 FEIS contains an almost identical description of how OHV routes in "Public Lands Not Included in Redesign Area" were evaluated, and provides the same five examples. AR 201842-201843.
In March 2003, the BLM released the Western Mojave Desert Off Road Vehicle Designation Project Environmental Assessment and Draft CDCA Plan Amendment for public review. AR 211373-211726. This document, the "2003 EA," addressed the route network developed through the Decision Tree process, as well as the routes designated in the non-redesign areas. On June 30, 2003, FWS issued
On March 16, 2000, the Center for Biological Diversity, et al., filed suit against the BLM for its alleged failure to consult with FWS to address the CDCA Plan's impact on the desert tortoise and other protected species. The court later approved a consent decree with five stipulated agreements and numerous interim measures. Under the consent decree, the BLM agreed to consult with FWS on, inter alia, the WEMO, NECO and NEMO Plan areas. The BLM also agreed to restrict cattle and sheep grazing in desert grazing allotments until a decision on the plan amendments, and to defer final route designation and maintain the existing emergency route closure in the Ord Mountain area until it completed the WEMO Plan, when the interim measures would expire.
In May 2002, the BLM published a Revised Notice of Intent to Prepare West Mojave Plan and Environmental Impact Statement, AR 214296-214297, and held public scoping meetings. AR 201668. On June 13, 2003, the BLM released the Proposed West Mojave Draft Environmental Impact Report and Statement ("DEIS") for public review. AR 207756-210195. In January 2005, the BLM published the FEIS. AR 201625-205379. On January 9, 2006, FWS issued a BiOp concluding that implementation of the WEMO Plan was not likely to jeopardize the desert tortoise or adversely modify desert tortoise critical habitat. WBO 14752-14949. In March 2006, the BLM issued the 2006 ROD to adopt the WEMO Plan to amend the CDCA Plan. AR 200044-200066.
In February 2001, the BLM issued a combined Proposed California Desert Conservation Area Plan Amendment for the Northern and Eastern Colorado Desert Coordinated Management Plan ("NECO Plan"), and a DEIS for the proposed plan. On June 17, 2002, FWS issued a BiOp regarding the impact of the NECO Plan. The BiOp concluded that the NECO Plan was not likely to jeopardize the continued existence of the desert tortoise and was not likely to destroy or adversely modify designated critical habitat of the desert tortoise.
On May 27, 2003, Center for Biological Diversity et al., filed a lawsuit against BLM and FWS challenging the June 17, 2002 BiOp, Center for Biological Diversity v. BLM (CBD II), C No. 03-2509 SI (N.D.Cal.). In 2004, the court held that FWS had relied on an invalid regulatory definition of "adverse modification" when analyzing effects to designated desert tortoise critical habitat in the June 17, 2002 BiOp. The BiOp was vacated and remanded to FWS with instructions to reissue the BiOp after applying the appropriate definition of adverse modification. On March 31, 2005, FWS issued a new BiOp analyzing the impacts of the CDCA Plan, and the NEMO and NECO Plan amendments on the desert tortoise. It is this March 31, 2005 BiOp, along with the January 9, 2006 BiOp issued by FWS for the WEMO Plan
The desert tortoise (Gopherus agassizii) is a large, herbivorous reptile, with adults measuring up to 15 inches in shell length and found in portions of the western United States and Mexico. The Mojave population of the desert tortoise was listed as a threatened species in 1990. See Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for the Mojave Population of the Desert Tortoise, 55 Fed.Reg. 12,178 (Apr. 2, 1990). On February 8, 1994, FWS published a final designation of critical habitat for the Mojave population of the desert tortoise. Endangered and Threatened Wildlife and Plants; Determination of Critical Habitat for the Mojave Population of the Desert Tortoise, 59 Fed.Reg. 5820 (Feb. 8, 1994); NBO 900-47. FWS identified 12 areas, encompassing a total of 6.5 million acres, as critical habitat. NBO 908. Eight units totaling 4.8 million acres were designated in California; the rest are located in Nevada, Utah, and Arizona. Id.
In June 1994, FWS finalized the Recovery Plan for the Mojave population of the desert tortoise, which describes a strategy for recovering and delisting the desert tortoise. NBO 546-899. The Recovery Plan divides the range of the Mojave population of the desert tortoise into 6 recovery units and recommends that land management agencies establish 14 DWMAs throughout the recovery units, with at least one DWMA in each recovery unit. NBO 582, 596, 598. The Recovery Plan also identifies activities which directly or indirectly threaten the desert tortoise and its habitat, such as domestic livestock grazing and OHV use. NBO 700-42. The Recovery Plan generally recommends that grazing not be permitted in DWMAs because no data exist to show that cattle grazing can be compatible with desert tortoise recovery. NBO 618. The Recovery Plan also recommends establishing vehicular controls and notes that the "recommendations are presented to aid land managers in the development of management plans," such as the NECO and WEMO Plans, as "DWMA-specific management plans cannot yet be precisely defined." NBO 606.
The Lane Mountain milk-vetch (Astragalus jaegerianus) ("LMMV") is a slender light-gray or greenish perennial plant species in the pea family which grows 12 to 27.5 inches tall. WBO 14911-12 (describing biology and ecology of the LMMV). The LMMV is known only from four occurrences and "does not appear to have been more widespread than is currently known; no extirpations of populations have been documented." WBO 14913, 14916 (discussing occurrences and distribution of LMMV). The LMMV was listed as an endangered species on October 6, 1998. 63 Fed.Reg. 53596. In the final critical habitat rule published on April 8, 2005, FWS did not designate critical habitat for the species. Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Astragalus jaegerianus (Lane Mountain milk-vetch), 70 Fed.Reg. 18,220 (Apr. 8, 2005). The occurrences of LMMV in the WEMO planning area are entirely within areas designated as critical habitat for the desert tortoise. WBO 4915-16. On January 9, 2006, FWS issued a BiOp concluding that implementation of the CDCA Plan, as amended by previous amendments and the proposed WEMO bioregional plan, was not likely to jeopardize the LMMV. WBO 14921-22. Plaintiffs challenge that "no jeopardy" finding.
This lawsuit was filed on August 14, 2006. By order filed January 11, 2007,
The parties filed cross-motions for summary judgment, and on May 16, 2008 the Court held a hearing on the motions. On August 12, 2008, the Court directed the parties to file revised cross-motions that incorporated two Ninth Circuit decisions issued after the May 16, 2008 hearing, Lands Council v. McNair, 537 F.3d 981 (9th Cir.2008) (en banc), and Oregon Natural Desert Ass'n v. Bureau of Land Management (ONDA), 531 F.3d 1114 (9th Cir. 2008).
Summary adjudication is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
In a motion for summary judgment, "[if] the moving party for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrate the absence of any genuine issues of material fact, the burden of production then shifts so that the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial." See T.W. Elec. Service, Inc., v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In judging evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, and draws all inferences in the light most favorable to the non-moving party. See T.W. Electric, 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)); Ting v. United States, 927 F.2d 1504, 1509 (9th Cir.1991). The evidence presented by the parties must be admissible. See Fed.R.Civ.P. 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Thornhill Publ'g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).
Judicial review of final agency actions is governed by the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. See Pyramid Lake Paiute Tribe of Indians v. U.S. Dep't of the Navy, 898 F.2d 1410, 1413 (9th Cir. 1990). The court "shall" set aside any agency decision that the Court finds is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The
The Court must determine whether the agency decision "was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The Supreme Court has explained that an agency action is 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, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Although the arbitrary and capricious standard "is narrow and presumes the agency action is valid, ... it does not shield agency action from a `thorough, probing, in-depth review.'" Northern Spotted Owl v. Hodel, 716 F.Supp. 479, 481-82 (W.D.Wash.1988) (citations omitted). The Court cannot, however, substitute its judgment for that of the agency or merely determine that it would have decided an issue differently. See Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 377, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989).
Plaintiffs challenge the OHV route designations in the WEMO Plan on three grounds. First, plaintiffs contend that the Decision Tree process failed to consider the "minimization criteria" contained in 43 C.F.R. § 8342.1, and further that there is no information or documentation in the administrative record regarding application of that criteria to the Decision Tree routes. Second, plaintiffs contend that there is nothing in the administrative record to show that BLM's designation of OHV routes outside of the redesign areas complied with 43 C.F.R. § 8342.1. Third, plaintiffs contend that the BLM's designation of all new OHV routes after 1980 are arbitrary and capricious because those routes were not "existing routes" in 1980 as required by the language of the CDCA Plan.
Plaintiffs contend that the Decision Tree OHV route designation process is fatally flawed because it did not explicitly consider the minimization criteria contained in 43 C.F.R. § 8342.1. 43 C.F.R. § 8342.1 provides:
43 C.F.R. § 8342.1(a)-(d).
The Decision Tree begins by asking "Is the route a commercial right-of-way, officially recognized or maintained or [sic-to?] serve as a regional route that serves more than on[e] sub-region or represents a principal means of connectivity within a sub-region?" AR 211559. Based on the answer to this question, the reviewer proceeds down the tree, answering further questions such as "Is route closure likely to lead to increased conservation of sensitive species?" and "Are the commercial or private uses of this route adequately met by another route(s) that avoid or minimize the impact to occupied habitat of sensitive species?" Id. At the end of the process, the Decision Tree assigns each route a code which allows a reviewer to determine the path down the Tree, i.e., the answers to each question presented in the Tree. AR 211585. Appendix C to the 2003 EA lists each route designated using the Decision Tree, its location, its code assigned by the Decision Tree questions, and the reasons for the recommendation of open or closed. AR 211584-211725.
The Decision Tree is reproduced in full below:
The Decision Tree also includes footnotes which identify "other concerns that need to be taken into consideration as each question is answered":
AR 211560.
Plaintiffs contend that the Decision Tree method used to designate routes inside the redesign area does not comply with 43 C.F.R. § 8342.1 because it does not address a route's minimization of damage to soil, watersheds, vegetation, air or other resources, such as cultural resources; does not consider minimization of conflicts between OHV uses and compatibility with existing populated areas; does not mention "noise" anywhere; and does not ask if routes dead-end into private land or otherwise lead to circumstances where conflicts with private landowners might arise. Plaintiffs also contend that the sequence of questions in the Decision Tree improperly prefers motorized vehicle access over any other resource.
The issue here is very similar to the one considered by then-District Court Judge Tashima in American Motorcyclist Association v. Watt, 543 F.Supp. 789 (C.D.Cal. 1982). Watt involved a challenge to the following OHV route designation criteria contained the CDCA Plan: "(1) Is the route new or existing? (2) Does the route provide access for resource use or enjoyment? (3) Are there alternate access opportunities? (4) Does the route cause considerable adverse impacts? (5) Are there alternate access routes which do not cause considerable adverse impacts?" Id. at 797. The court found that these criteria were "presented in such a manner so as to
Defendants contend that Watt must be "viewed in light of" Sierra Club v. Clark (Sierra I), 756 F.2d 686 (9th Cir.1985), and Sierra Club v. Clark (Sierra II), 774 F.2d 1406 (9th Cir.1985). In Sierra I, the plaintiffs sought review of the BLM's failure to close a portion of the CDCA previously designated as open to unrestricted OHV use. 756 F.2d at 688. The plaintiffs relied on 43 C.F.R. § 8341.2, which states that "where the authorizing officer determines that off-road vehicles are causing or will cause considerable adverse effects ... the authorized officer shall immediately close the areas or trails affected." 43 C.F.R. § 8341.2(a). The plaintiffs argued that the regulation's use of "shall" required the agency to close all routes for which "considerable adverse effects" were found. The Ninth Circuit determined that the plaintiffs' interpretation would inevitably result in the total prohibition of OHV use because there was no dispute as to the extent of damage caused by OHV use. Sierra, 756 F.2d at 690-91. The court rejected the plaintiffs' argument that the Secretary was required to close any area damaged by OHV use: "However appealing might be such a resolution of the environmental dilemma, Congress has found that OHV use, damaging as it may be, is to be provided `where appropriate.' It left determination of appropriateness largely up to the Secretary in an area of sharp conflict." Id. at 691 (quoting FLPMA, 43 U.S.C. § 1781(a)(4)).
In Sierra II, the Ninth Circuit reviewed the BLM's decision to open a race course extending from Barstow to Las Vegas pursuant to an amendment to the CDCA and purportedly in compliance with the minimization criteria of 43 C.F.R. § 8342.1. 774 F.2d at 1409-10. The amendment was issued in response to what had become a regular occurrence of "protest rides," which, if not controlled, would have produced even greater harm. Id. The Ninth Circuit found that the amendment was a proper exercise of BLM discretion because it included mitigation requirements which sought to assure the "minimization" of impacts from the race.
The BLM's Decision Record CDCA Plan Amendment Western Mojave Desert Off Road Vehicle Designation Project, AR 206756-206777, which amended the CDCA Plan to include the OHV route network developed through the Designation Project, states that "the questions that comprise the `branches' in the Decision Tree were based upon statutory requirements concerning resource protection, the provision of commercial and recreational access, and criteria set forth in the CDCA." AR 206773. However, the Decision Tree itself does not reference 43 C.F.R. § 8342.1 or the particular factors cited therein.
For example, consider those routes designated "open" using the Decision Tree code SO-3. Any route so designated has the following properties:
AR 211559. Thus, routes designated as "SO-3" open routes have been evaluated for their impact on sensitive species and their habitat; however, even that consideration is not necessarily equivalent to determining whether an OHV route is located "to minimize harassment of wildlife or significant disruption of wildlife habitats." 43 C.F.R. § 8342.1(b). More importantly, even assuming that the Decision Tree's consideration of impacts on species and their habitat did comply with § 8342.1, the Decision Tree is still deficient because the minimization criteria apply to more than just conservation of sensitive species and habitat. 43 C.F.R. § 8342.1(a) requires
Conversely, and equally problematic, a route cannot be closed using the Decision Tree, regardless of the level of impact on sensitive species or potential to mitigate cumulative effects, unless it either: (a) does not contribute to recreational opportunities, dispersed use (i.e. thereby reducing impacts, e.g. soil erosion), connectivity, public safety, etc. (SC-1, SC-3, SC-5); or (b) makes such a contribution, or provides some other commercial or private use, but is redundant with other routes that provide the same opportunity or use (SC-2, SC-4, SC-6, SC-7). Id.
Routes designated as "SO-4" open routes are instructive. To reach the SO-4 designation, one must take the following path down the Decision Tree:
After answering all of these questions, a route is designated as open to OHV use, and assigned the "SO-4" code. AR 211559. Thus, although "most" of a SO-4 route impacts occupied habitat of a sensitive species, and route closure is likely to lead to increased conservation of sensitive species, because the commercial or private uses of the route are not "adequately met by another route that avoids or minimizes the impact to occupied habitat of sensitive species," the route is designated open. There is nothing on the face of the Decision Tree to reflect that routes designated as S0-4 comply with § 8342.1's requirement that routes "shall be located to minimize harassment of wildlife or significant disruption of wildlife habitats." 43 C.F.R. § 8342.1(b). Indeed, as with the flawed OHV route designation criteria in Watt, the Decision Tree questions "would permit agency officials to make route designations without the minimization of environmental impacts and conflicts between uses expressly required by 43 C.F.R. § 8342.1," and "in practice is almost certain to skew route designation decision-making in favor of ORV use." Watt, 543 F.Supp. at 797.
Defendants contend that the Decision Tree only produced a recommendation that was later evaluated in light of the minimization criteria in 43 C.F.R. § 8342.1, and that taken as a whole, the process adequately addressed and considered all the required factors. In other words, defendants argue that the Decision Tree questions were not the "exclusive standard to which route designations were made" like the route designation questions in Watt. To support this position, defendants cite
The stated goals for the overall route designation project are set forth in the March 2003 EA. They include a table of authorities which must be complied with during the process, including NEPA, FLPMA and 43 C.F.R. § 8342.1. AR 211391-92. The goals also indicate a desire to utilize a process which concerns a "variety of data, including biological, cultural, and recreational resources." AR 211390. Likewise, the issues and goals for each MAZ express, at least in some cases, an acknowledgment of concerns relevant to the minimization criteria of 43 C.F.R. § 8342.1. However, the stated goals for the overall project and for each MAZ do not explain how they would be achieved, and simply citing stated goals is not tantamount to showing that the BLM actually applied the minimization criteria in the OHV route designation process. As Judge Tashima observed in Watt, references in the record that "the BLM did not intend nor was authorized to designate routes not in conjunction with 43 C.F.R. § 8342.1 are not sufficient to counteract the impression that [the challenged route designation] criteria are the exclusive bases for route approval decisions." Watt, 543 F.Supp. at 797.
Defendants describe the footnotes to the Decision Tree as a "critical" part of the process. At the end of each Decision Tree branch (both routes designated open as well as closed), the reviewer is directed to the route code (e.g., "SO-4"), and footnote "*1". AR 211559. Footnote *1 states:
AR 211560. The BLM argues that reviewers considered § 8342.1 criteria in connection with assessing whether there were "special circumstances that would warrant reconsideration." There are several problems with this assertion. First, footnote *1 does not reference the criteria set forth in 43 C.F.R. § 8342.1, such as "minimiz[ing] damage to soil, watershed, vegetation, air, or other resources of the public lands." 43 C.F.R. § 8342.1(a). Although the footnote mentions "user conflicts," that reference is not equivalent to directing reviewers to locate trails "to minimize conflicts between off-road vehicle use and other existing or proposed recreational uses of the same or neighboring public lands, and to ensure the compatibility of such uses with existing conditions in populated areas, taking into account noise and other factors." Id. § 8342.1(c).
Moreover, even if the BLM did determine that "special circumstances" based on the § 8342.1 minimization criteria warranted reconsideration and routes were changed from the "open" designation to a "closed" one, it is impossible to determine that from the administrative record. Every Decision Tree route has a corresponding
Here, nothing in the record documents that anything other than the Decision Tree questions and the route-type and recreation data collected during the on-the-ground surveys determined the designation of routes. Defendants repeatedly emphasize the extensive route surveys and information gathering process leading up to the application of the Decision Tree. The Court recognizes that the BLM expended considerable effort in surveying and inventorying OHV routes. However, there is nothing in the record to show that the minimization criteria were in fact applied when OHV routes were designated. To the extent that the Decision Tree footnotes and route designation forms truly were "critical," BLM failed to adequately explain and document how and when they entered the decision process. Moreover, there are suggestions in the record that the BLM may have interpreted 43 C.F.R. § 8342.1 simply to require the elimination of redundant routes when required to reduce resource damage. For example, in response to questions from the public, the BLM stated:
AR 202570-202571. Likewise, the 2003 ROD states that the OHV route network meets the "full range" of visitor needs while remaining "compatible" with wildlife and plant conservation. AR 206773. "Compatibility" was achieved by closing redundant routes, and closures were "offset (i.e. mitigated) by opening routes where resource concerns were minimal." Id. However, nothing in the language of § 8342.1 provides that the minimization
Defendants assert that the fact that many routes were closed as a result of the Decision Tree process demonstrates that BLM implemented the § 8342.1 criteria. Defendants cite three pieces of evidence for support of their decisions in the record, (1) Appendix C to the 2003 EA, (2) the fact that almost two-thirds of the routes were closed, and (3) the fact that several "open" designations were changed in response to public comments. However, the overarching problem with this evidence is that while it explains how the Decision Tree was applied, nothing in the administrative record explains or documents how the factors in 43 C.F.R. § 8342.1 were considered.
Appendix C of the 2003 EA contains a table of records for each designated route, purportedly enabling the public and the Court to discover the reasons for each route's designation as open or closed. AR 211584-211725. A review of Appendix C shows that the vast majority of routes that were closed were closed because they were considered redundant. As stated above, redundancy is indeed one of only two reasons that a route could be closed using the Decision Tree process. In any event, if it is true that the BLM minimized the impacts identified in 43 C.F.R. § 8342.1 in some manner other than the Decision Tree questions, there is no way to glean that information from Appendix C. For example, Appendix C does not explain how the minimization criteria have been applied to routes designated as "SO-4" open routes, despite the fact that, as discussed supra, these routes both "impact sensitive species or occupied habitat of sensitive species," and "most of the route impact[s] occupied habitat of sensitive species." AR 211559. For example, Appendix C contains the following information for four SO-4 routes, three designated open and one closed. The specific comments for the three open SO-4 routes are "Access to private property including water tank"; "Primarily private property access dead-end route"; and "Camping access and interesting terrain." AR 211609. The specific comment for the closed SO-4 route is "Redundant low use parallel route." Id.; see also AR 211696 (SO-4 open route: "short route connects to larger routes"), 211705 ("Route provides access to Rainbow Basin").
Nor does the fact that the BLM closed almost two-thirds of the evaluated routes constitute evidence that the BLM complied with 43 C.F.R. § 8342.1. "Minimize" as used in the regulation does not refer to the number of routes, nor their overall mileage.
Over half of OHV route network (2,833 miles) that the BLM designated lies outside of the redesign areas. AR 201843.
Defendants rely on the Ninth Circuit's en banc decision in The Lands Council v. McNair, 537 F.3d 981 (9th Cir.2008) (en banc), to support their position that the BLM is not required to engage in an on the ground, site-specific analysis for every route. Lands Council does not support defendants' position. The plaintiffs in Lands Council contended that the Forest Service had violated the National Forest Management Act because it had not demonstrated the reliability of the scientific methodology underlying the Service's analysis of the effect of a proposed project on a protected species and its habitat. Id. at 990. Specifically, the plaintiffs contended that the Forest Service was required to "verify[] its prediction regarding the effect of treatment on old-growth species' habitat with observation or on-the-ground analysis." Id. The Ninth Circuit rejected "a broad rule that, in effect, requires the Forest Service to always demonstrate the reliability of its scientific methodology or the hypotheses underlying the Service's methodology with `on the ground analysis.'" Id. The court held that there was no requirement in either the law or the regulations specifically requiring on the ground analysis, and that instead "[g]ranting the Forest Service the latitude to decide how best to demonstrate that its plans will provide for wildlife viability comports with our reluctance to require an agency to show us, by any particular means, that it has met the requirements of the NFMA every time it proposes action." Id. at 992. Nothing in Lands Council changes the fundamental principle of administrative law that an agency must comply with applicable laws and regulations, and must establish a rational connection between the facts it considered and the decisions it made. Id. at 994 (holding that the Forest Service must support its conclusions that a project meets the relevant legal requirements with studies it deems reliable, explain the conclusions it drew from its chosen
Here, the BLM has not identified any factual basis in the record to support the assertion that the OHV routes outside the redesign areas were designated in compliance with the minimization criteria set forth in 43 C.F.R. § 8342.1. Moreover, what information is in the record suggests otherwise. Although the 2003 EA and FEIS state that the five examples of "updating" are not exhaustive, the FEIS also states in the public comment and response section:
AR 202567 (emphasis added). Moreover, in response to another public comment in the FEIS, the BLM describes the route network adopted in 1985-87 as having "a design [that] did not ensure that those routes were located outside of biologically sensitive areas" and "based on a relatively cursory field inventory conducted in the 1980s, prior to the availability of GPS technology and modern field data recording equipment." AR 202573.
The essence of the BLM's position is that the Court should find that the BLM complied with 43 C.F.R. § 8342.1 when it designated thousands of miles of OHV routes outside the redesign area because the BLM says that it did. This is not enough, even under a deferential level of review. See Klamath-Siskiyou Wildlands Ctr. v. BLM, 387 F.3d 989, 996 (9th Cir. 2004) ("In sum, the only mention of cumulative effects in the two EAs comes in the form of generalized conclusory statements that the effects are not significant or will be effectively mitigated. At oral argument,
Plaintiffs challenge all OHV route designations after 1980—whether through the Decision Tree, the ACEC designations, or the 1985-1987 designations—as being in violation of the language of the CDCA Plan which defines "Limited Areas" for the purposes of route designation. The BLM has amended the CDCA several times since 1980. The third amendment, passed in 1982 and unchanged since, defined "Limited Area" as follows:
AR 222005 (emphasis added).
Plaintiffs contend that this definition places a fixed cap on the routes that may be designated open in "Limited Areas" at those routes that were "established before the approval of the Desert Plan in 1980." As discussed above, the route designations challenged here were finalized pursuant to amendments to the CDCA issued in June 2003 and March 2006. AR 206756-206777, 200044-200066. Plaintiffs argue that in contravention of the definition of "Limited Area,"
Defendants do not really dispute that the plain language of the CDCA Plan imposes a cap on OHV routes to those that existed in 1980, and the Court agrees with plaintiffs' interpretation of the CDCA's "at the minimum" language as forbidding the establishment of routes that did not exist before 1980. That the CDCA Plan contains such a ceiling on OHV routes is made clear by the definitions of "Class I" and "Class M" sub-areas that follow the general definition for "Limited Areas" cited above:
AR 222005 (emphasis added). These definitions reveal that the "at the minimum" language refers to the minimum limitation that can be imposed on an area, which is to keep all existing routes open but forbid the creation of any new routes. If necessary, further limitations would be imposed, the maximum limitation being to close all routes. This section of the CDCA shows a clear intention to limit the
Indeed, the record reflects that throughout the BLM's various post-1980 OHV route designation projects, including the Western Mojave Desert Off Road Vehicle Designation Project that resulted in the OHV route network in the 2003 EA and the WEMO Plan, the BLM staff have been acutely aware of the OHV route limitation contained in the CDCA Plan, and of the potential conflict between that language and the post-1980 OHV route designations. Indeed, the WEMO Plan manager expressed the view that post-1980 OHV route designations would require an amendment to CDCA Plan, along with a justification for the post-1980 routes. Mr. Haigh received an email from a BLM employee asking,
AR 211762 (Jan. 15, 2003 email from Jeffrey Aardahl to Bill Haigh). On January 18, 2003, Mr. Haigh responded,
Id.; see also AR 211763-211674, 211305 ("I want to make sure that the decisions, and the EIS, are very clear why we are not limiting the route network to routes `existing in 1980' (see CDCA Plan language which some interpret as imposing such as limit)"), 230281-230282 (1985-1987 OHV route designation); SAR 305745.
Defendants respond with a variety of arguments about why the post-1980 OHV designations are not "illegal." The BLM argues that "neither FLPMA nor NEPA requires that the BLM impose a blanket closure on all routes and restore them to pre-1980 status. Instead, FLPMA directs the BLM to prepare and maintain a current inventory of resources, including outdoor recreation uses such as OHV routes. The BLM has done so through the route designation process and the WEMO Plan and FEIS." Rev. MSJ at 23:18-22. The BLM is correct that neither FLPMA nor NEPA directly imposes the 1980 OHV route limitation; that limitation is contained
In Brong, the Ninth Circuit held that the BLM acted arbitrarily and capriciously when it interpreted a land use plan as permitting a logging project in an area designated protected under a land use plan. Id. The court first noted that "once a land use plan is developed, "[a]ll future resource management authorizations and actions ... shall conform to the approved plan."" Id. (quoting FLPMA regulations, 43 C.F.R. § 1610.5-3(a)). The court found that while the land use plan permitted salvage logging in limited circumstances and clearly prioritized the preservation of protected ecosystems over commercial benefits, the BLM had interpreted the salvage guidelines as balancing environmental concerns and economic factors equally. Id. at 1127. The court found that several aspects of the salvage logging project were "inconsistent with the Plan and, consequently, violate[d] FLPMA." Id. at 1128; see also Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 69, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (BLM actions that are inconsistent with the provisions of a land use plan are properly set aside under the APA as contrary to law).
Defendants argue that there is no inconsistency between the post-1980 OHV route designations and the CDCA Plan because the WEMO Plan amended the CDCA Plan. However, the WEMO Plan amendment did not amend or remove the language imposing a cap on OHV routes to those existing in 1980, nor is there any effort in the WEMO Plan to explain why the limitation should not apply to the post-1980 designated OHV routes. Instead, the WEMO Plan simply ignores the language capping OHV routes to those existing in 1980, and designates thousands of OHV routes, a significant portion of which did not exist in 1980.
The Court does not hold that OHV route designations in the WEMO are forever frozen at the 1980 OHV route network. The BLM has the authority to amend the CDCA Plan to lift the restriction on routes established after 1980, so long as those amendments satisfy NEPA, FLPMA, and all other applicable statutes and regulations. But the BLM must actually amend that language, not ignore it, and presumably any such amendment would require a reasoned explanation based on information and data in the record why post-1980 routes should be designated. Indeed, as the emails and other documents cited above indicate, the WEMO planning staff were aware of this need to justify the designation of post-1980 OHV routes, and there is no explanation why the final
Plaintiffs contend that the BLM violated NEPA in three respects: (1) BLM did not consider a full range of reasonable alternatives because every action alternative left open the same 5,098 miles of OHV routes, (2) BLM did not properly analyze the environmental impacts of the WEMO Plan because the environmental baseline was never clearly identified, and (3) BLM failed to present accurate information regarding many of the most critical impacts resulting from OHV route designations and the other activities authorized under the WEMO Plan.
The NEPA regulations require that an agency "[r]igorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated." 40 C.F.R. § 1502.14(a). Such rigorous exploration and objective evaluation of all reasonable alternatives is "the heart of an EIS." Natural Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797, 813 (9th Cir. 2005). As the Ninth Circuit has held,
Citizens for a Better Henderson v. Hodel, 768 F.2d 1051, 1057 (9th Cir.1985) (internal citations omitted). Put differently, "[t]he touchstone for [the court's] inquiry is whether an EIS's selection and discussion of alternatives fosters informed decision-making and informed public participation." California v. Block, 690 F.2d 753, 767 (9th Cir.1982).
"The stated goal of a project necessarily dictates the range of `reasonable' alternatives and an agency cannot define its objectives in unreasonably narrow terms." City of Carmel-By-The-Sea v. U.S. Dep't of Transp., 123 F.3d 1142, 1155 (9th Cir. 1997). The range of alternatives that the BLM did and did not consider are evaluated in light of the BLM's stated project goals. Id. The stated purpose and need for the WEMO Plan as set forth in the FEIS and the 2003 ROD is to "establish[] a regional biological strategy to conserve plant and animal species and their habitats and prevent future listing" and to "provide an efficient, equitable and cost-effective process for complying with threatened and endangered species law." AR 200058. Plaintiffs do not challenge the BLM's stated goal. Instead, plaintiffs contend that because every alternative contained in the FEIS is based on the same 5,098 OHV route network, the range was too limited to foster informed decision-making. Plaintiffs argue that the BLM should have, but did not, consider alternatives that reduced the overall OHV route network, thus rendering the FEIS inadequate under NEPA. See Hodel, 768 F.2d at 1057; Westlands Water Dist. v. United States Dept. of Interior, 376 F.3d 853, 868 (9th Cir.2004).
Plaintiffs challenge both the range of alternatives contained in the 2003 EA and the FEIS. The alternatives in the two documents are similar, and in some instances identical. The FEIS considered seven alternatives: Alternative A ("Proposed Action—Habitat Conservation Plan"); Alternative B ("BLM only"); Alternative C ("Tortoise Recovery Plan"); Alternative D ("Enhanced Ecosystem Protection");
AR 201843-201844. Alternative A also proposed route closures within DWMAs; the FEIS states that "[i]n DWMAs, the network would result in the closure of 1,855 of the 4,225 total linear miles of routes on public land, which is a 44% reduction of routes in DWMAs," and that "[u]se of the remaining 2,370 linear miles of open routes in DWMAs, representing 56% of existing routes in DWMAs, would continue to result in permitted and un-permitted impacts." AR 202261.
All seven alternatives allowed OHV use to some degree on the 5,098 mile network; for example, Alternative B (which was ultimately selected) included 5,098 miles of "open" routes and 0 miles of "limited" routes, while other alternatives had different levels of "open" versus "limited" routes. The alternatives also differed in that the areas affected by stopping-parking-camping limits for OHVs varied, as do drought closures, and one alternative (Alternative D) banned non-street legal OHVs. However, it is undisputed that all of the alternatives considered OHV access on the same 5,098 miles of routes, and no alternative considered OHV use on a lesser route network. The BLM also eliminated from consideration seven other alternatives on the ground that they did not meet the purpose and need for the WEMO Plan or the CDCA Plan. AR 201914-17. The rejected alternatives include the Interim Management Alternative that was the subject of this Court's order in CBD II v. Bureau of Land Management, 422 F.Supp.2d 1115 (N.D.Cal.2006), and the 1985-87/ACEC network that was considered as the No Action Alternative in both the EA and the DEIS. Id. At least some of the eliminated alternatives, such as the Interim Management Alternative, included a smaller OHV route network than the
Plaintiffs rely heavily on ONDA, 531 F.3d 1114 (9th Cir.2008), to challenge the FEIS's range of alternatives. In ONDA, the Ninth Circuit considered the adequacy of a range of alternatives in an EIS, and in ONDA as in this case, the plaintiffs challenged the range of alternatives as too limited because all of the presented alternatives varied "almost entirely by the amount of land they allocate[d] between the open and limited use categories" and none of the alternatives closed a significant amount of land to OHVs. Id. at 1126. The Ninth Circuit held that the EIS violated NEPA because:
Id. at 1145. In ONDA, the BLM argued that "its analysis of ORV designations is adequate because it considered a wide range of use allocations between open and limited ORV designations, and because it could implement emergency closures if necessary." Id. The Ninth Circuit disagreed: "Limited ORV use is simply not identical to no ORV use. A limited designation, even with the possibility of closure, does not provide protection equivalent to a straightforward closure." Id.
Defendants argue that ONDA is irrelevant to the Court's inquiry because that case turned largely on the BLM's failure to consider wilderness characteristics in the EIS, an issue not present here. However, while the ONDA court found the EIS inadequate because the BLM did not consider "wilderness" values, the Ninth Circuit held that "the ORV analysis [in the range of alternatives] is also flawed, however, for a reason independent of wilderness issues," namely the BLM's failure to include any alternatives that did not include "closures of significant portions of the land it manages." Id. (emphasis added).
Here, the range of alternatives in the FEIS suffers from flaws similar to those identified in ONDA. All of the alternatives in the FEIS considered the same OHV route network, with variations on the extent to which the routes would be designated "open" versus "limited": no alternative proposed closing additional routes to OHV use. Indeed, in assessing Alternative A, the FEIS states that "All alternatives share the same proposed route designation and implementation characteristics." AR 202269. As in ONDA, all of the alternatives resulted in an increase in the amount of miles formally designated as open to OHV use. AR 201843. Defendants argue that this case differs from ONDA in that the 2003 route designations actually reduce OHV route mileage as compared to the 2001-2002 on the ground route inventory, whereas in ONDA all of the alternatives increased OHV usage over the "no action" alternative. However, as discussed in greater detail in connection with plaintiffs' challenges to BLM's designation of the "no action" alternative, the 2001-2002 inventory identified the actual on the ground route network in various subregions; many of those routes had not been formally designated by BLM but instead were the result of informal and illegal proliferation. See AR 202203 (chart comparing, for various subregions, mileage designated open in 1985-1987 versus 2001 route inventory, and showing significant
Defendants emphasize other differences between the alternatives, such as the fact that dirt bikes and ATVs were banned from Alternative D, or that speed limits were set for designated routes in DWMAs under Alternative C. However, under both Alternatives C and D, all 5,098 miles of routes were designated for some level of OHV use. Thus, despite the differences in levels and intensity of use—which are similar to the types of differences in the ONDA alternatives—all of the alternatives in the FEIS are based on the same 5,098 mile OHV route network. The BLM also stresses the fact that Alternative B narrows the stopping-camping-parking corridors from 600 feet (300 feet on each side from the centerline of routes) to 100 feet (50 feet from the centerline) within tortoise DWMAs, thus reducing the acreage accessible by OHVs. While this is a significant impact, the fact remains that all of the alternatives, including Alternative B, are based on the same OHV route network, and thus do not provide a truly meaningful range of alternatives.
The BLM also argues that Alternative E, which expands certain of the "open access" areas, demonstrates that the agency complied with its NEPA obligations. However, providing a range of alternatives that allow for OHV use to differing—and in the case of Alternative E, much greater—degrees on the same basic route network does not satisfy the requirement to provide a reasonable range of alternatives. As the Ninth Circuit held, "[i]t is precisely this sort of `uncritical [ ]' privileging of one form of use over another that we have held violates NEPA," and "[c]losures, not just `limited' designations, must be considered to comply with NEPA." ONDA, 531 F.3d at 1145.
Plaintiffs posit four possible alternatives that the BLM could have considered, including one under which the BLM could have retained the interim route designations in five specific sub-regions put in place pursuant to the previous settlement agreements and consent decrees.
NEPA regulations provide that an EIS must include "the alternative of no action" as well as "all reasonable alternatives." 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1502.14(a), (d). Plaintiffs contend that neither the 2003 EA nor the FEIS uses a clearly defined baseline from which environmental impacts are discussed and compared. Plaintiffs contend that the correct baseline is the OHV route as it existed in 1980 because that is the only OHV route that is permitted by the CDCA Plan. In contrast, the BLM and the intervenors argue that the baseline in the 2003 EA and the FEIS (which are different) accurately reflect the baseline as it currently existed, and that is all that is required under the law.
The parties' arguments highlight one of the central difficulties of this case. While plaintiffs are correct that the CDCA Plan limited the OHV route network to those routes in existence in 1980, it is also true that there is no readily identifiable inventory of the OHV routes extant in 1980. It is also a fact that since 1980, the BLM has designated numerous OHV routes through the ACEC and 1985-1987 route designation processes—at least some of which did not exist in 1980—that have become part of the actual on the ground OHV route network. Further complicating matters is the fact that over the years, numerous "illegal" OHV routes that were not designated by the BLM have proliferated and also became part of the de facto OHV route network. Defendants are correct that NEPA does not impose an independent requirement of setting a "legal" environmental baseline. See Am. Rivers v. FERC, 201 F.3d 1186, 1195 (9th Cir.1999) ("A baseline is not an independent legal requirement, but rather, a practical requirement in environmental analysis often employed to identify the environmental consequences of a proposed agency action."). Instead, the purpose of setting a baseline is because the "`no action' status quo alternative ... is the standard by which the reader may compare the other alternatives' beneficial and adverse impacts related to the applicant doing nothing." Kilroy v. Ruckelshaus, 738 F.2d 1448, 1453 (9th Cir.1984) (internal citation and quotation omitted).
To the extent that plaintiffs contend that the BLM was required to use the "1980" OHV route network as the "no action" alternative, the Court disagrees. As a practical matter, there is no way to easily identify that network. More importantly for NEPA purposes, the "1980 OHV network" cannot be the "no action" alternative against which the proposed action would be compared because the 1980 network has not been the status quo since 1980, decades before the proposed action. That does not mean that the BLM can ignore the CDCA Plan's language limiting the OHV route network to routes existing in 1980; the BLM must recognize that limitation either by amending the CDCA Plan to eliminate that limitation, as discussed supra, or by prospectively ensuring that only those routes that are "designated" are the routes that existed in 1980.
NEPA requires that agencies "present complete and accurate information to decision makers and to the public to allow an informed comparison of the alternatives
To fulfill NEPA's goal of providing the public with information to assess the impact of a proposed action, the "no action" alternative should be based on the status quo—with a full description of what the status quo is and how it was reached—and should be consistently used as the benchmark by which the various alternatives are compared. The FEIS defined the "no action" alternative as the route network that had been adopted by the 2003 ROD (the 2003 EA routes), because that was the "status quo" at the time of the FEIS. However, in order to present an accurate picture of that status quo "no action" alternative to the public, the FEIS should have informed the public that many of the routes included in that alternative were not part of the 1980 route network. The FEIS also should have informed the public that the "no action" alternative consisted of a route network that was larger than both the 1980 OHV route network, as well as the 1985-1987/ACEC network, but smaller than the actual on the ground network as identified in the 2001-2002 inventory. Only with all of this information could the public accurately assess the true nature of the status quo, as well as the proposed alternatives against which it is compared. Of course, the development of the OHV route network from 1980 through the creation of the WEMO Plan is relevant both in the context of explaining and justifying the need to deviate from the 1980 cap (and amend the CDCA Plan language to eliminate that limitation), and in the context of the "no action" alternative.
Another problem arises out of the fact that it is not always clear in the FEIS that the same baseline is used in the "no action" alternative as a basis for comparison. As plaintiffs note, Table 3-58 in the FEIS compares the 1985-1987 route network against the 2001-2002 route inventory, AR 202203-202204, while Table 4-45, which purportedly compares Alternative A against the no action alternative states, inter alia, that "a proportionally higher number of route closures occurred in those areas characterized by `bajada' topography." AR 202342. However, because the no action alternative in the FEIS consisted of the routes designated through the 2003 EA, and Alternative A only incorporated "several minor network modifications" suggested by the public when the 2003 EA routes were presented in the DEIS
The fluidity and inconsistent definition of the "no action" alternative is more evident in the 2003 EA. There, the "no action" alternative was defined as those routes put in place during the preparation of the ACEC management plans since 1980, and states that for all other areas the 1985-87 OHV route designations would "remain in place." AR 211415. Alternative A in the 2003 EA, which was the "Proposed Action" compared against the "no action" alternative, consisted of the routes designated through the Decision Tree process. However, all non-recreational impacts are compared between Alternative A and the 2001 inventory, or the actual on-the-ground OHV route network, while all recreational impacts are compared between Alternative A and the 1985-87 network. For example, in evaluating the cumulative impacts of Alternative A on biological resources, the BLM stated: "[w]ithout an education and enforcement program, and signing of open routes, the public will continue under the impression that off road travel is allowable anywhere it is possible (outside wilderness and established ACECs)," concluding "the No Action Alternative has a moderate cumulative adverse impact on biological resources." Id. AR 211544.
AR 211545.
Plaintiffs contend that the 2003 EA and the FEIS do not address whether the implementation measures included as part of the action will actually be effective in preventing further expansion of "illegal" OHV routes. Plaintiffs note that the BLM has acknowledged that illegal route proliferation does indeed occur, and that several of its previous measures to stop it have been unsuccessful. Plaintiffs argue that the 2003 EA and the FEIS contain broad statements, without reference to data, concerning implementation and compliance efforts. Plaintiffs assert that the BLM was required to demonstrate, through data or studies, that its management strategy would be effective. Plaintiffs also assert that the various enforcement and education measures are dependent on the
Defendants respond that the BLM's obligation under NEPA is procedural, not substantive, and that the BLM has adequately identified and assessed potential mitigation measures. The BLM notes that the FEIS contains numerous proposed mitigation measures, such as mitigation fees (AR 201722-201727); desert tortoise take-avoidance measures and survey protocols (AR 201745-201754); and a monitoring and adaptive management program for various species, including the desert tortoise, the LMMV, the Barstow Wooly Sunflower, and the Mojave monkeyflower (AR 201863-201891). See also AR 204532-204597 (Appendix C—Implementation Tasks). More importantly, the FEIS does contain a fairly detailed discussion of the measures that BLM would take with regard to signing and maintaining the OHV route network, which would prevent against proliferation of illegal, non-designated OHV routes. See AR 201851-201855.
The Court agrees with the BLM that there is no requirement that BLM "prove" in an EIS that its mitigation measures will work, and that "NEPA requires only that an EIS contain `a reasonably complete discussion of possible mitigation measures.'" N. Alaska Envt'l Ctr. v. Kempthorne, 457 F.3d 969, 979 (9th Cir. 2006) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)).
Plaintiffs next contend that BLM failed to inventory, identify and analyze significant impacts to sensitive resources. Plaintiffs rely on FLPMA, which states that "[t]he Secretary shall prepare and maintain on a continuing basis an inventory of all public lands and their resource and other values," and this "[t]his inventory shall be kept current so as to reflect changes in conditions and to identify new and emerging resource and other values." 43 U.S.C. § 1711(a). Plaintiffs also rely on this Court's decision in CBD II. There, the plaintiffs claimed that the BLM relied on incomplete and insufficient inventory data in the Final Environmental Impact Statement regarding the resources of the Imperial Sand Dunes Recreation Area ("ISDRA"), and thus that the BLM's approval of a management plan tied to that FEIS was arbitrary and capricious. The Court held,
CBD II, 422 F.Supp.2d at 1167. The Court found that the BLM had violated NEPA's requirement to consider every significant aspect of the environmental impact of a proposed action because "despite extensive information in the record and available to the BLM regarding scores of invertebrates that are known or believed to be endemic to the Dunes, the EIS only identifies five invertebrates." Id. at 1162. The Court found that despite the existence of resource inventories describing the other species, "there is no indication from the EIS itself that the BLM considered the environmental impact of the [management plan] on the numerous endemic invertebrates that are known or likely to occur in the Dunes." Id. at 1164.
With this framework in mind, the Court turns to plaintiffs' specific challenges.
First, plaintiffs contend that the BLM did not adequately consider the effects of the WEMO Plan on soils. Plaintiffs argue that the FEIS simply notes a number of impacts that OHVs may have on soils, including infiltration, erosion, and soil chemistry, but that the FEIS does not discuss the impact on soils of the actual route network designated as open, nor does it discuss the impacts of grazing on soils.
Defendants counter that the FEIS contains a more than adequate discussion of the impacts on soils. The Court agrees that the FEIS contains a detailed discussion of the general impacts of OHV use on soils. See, e.g., AR 202232-202233. The FEIS also discusses measures to address disturbance to soils, such as revegetation and controlling erosion. See e.g., AR 201748. However, what is lacking from the FEIS is a discussion of how soils would be impacted by the proposed WEMO OHV route network. A general discussion of how soils are affected by OHV use, while informative, does not provide the public with information about how to assess the particular impact of the proposed project. Of course, the BLM need not provide a detailed description on a route-by-route basis; however, the FEIS should contain some discussion of the particular impacts on soils of the proposed Plan, both with regard to the designated OHV route network, and livestock grazing. "NEPA requires federal agencies to examine the environmental effects of a proposed project and, for those actions that will significantly affect the environment, to inform the public in an EIS of the relevant factors that were considered in the decision-making process." Natural Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797, 811 (9th Cir.2005).
Plaintiffs also challenge the FEIS's discussion of impacts to cultural resources. The FEIS contains a section describing cultural resources in the chapter on "Affected Environment." AR 202209-202223. The cultural resources include a number of known cultural sites that are listed in the National Register of Historic Places, such as Last Chance Canyon (with "known values" listed as
AR 202349. Plaintiffs focus on the following paragraph in the FEIS's discussion of impacts to cultural resources:
AR 202350. Plaintiffs contend that it is inadequate to simply state that OHV use has a "significant" effect on cultural resources, but that "[t]he effect of BLM routes of travel on public land cultural resources has not been fully determined because information needed to assess effect is incomplete at the present time." Plaintiffs argue that the BLM is not permitted to take such actions without first expending reasonable costs to ascertain what it can. See 40 C.F.R. § 1502.22.
The BLM generally responds that plaintiffs' objection is "too vague" and that plaintiffs fail to identify any particular cultural resources or site of concern. However, it is not plaintiffs' burden to identify
Plaintiffs identify several specific biological resources of concern, but also state that these are just examples of the BLM's broad failure to keep adequate inventories of biological resources as required by FLPMA. Plaintiffs cite riparian concerns, "unusual plant assemblages" ("UPAs"), and water quality, for which plaintiffs contend the BLM has no inventory whatsoever. Plaintiffs also cite the spreading of non-native plants (i.e. weeds) and several sensitive species. Defendants counter that FLPMA does not require the BLM to have a current inventory on every species potentially in the plan area prior to approving a plan. CBD II, 422 F.Supp.2d at 1167.
Plaintiffs challenge the FEIS's treatment of the impacts of OHV routes and grazing on water-associated UPAs and on riparian and water resources. Plaintiffs argue that the FEIS does not contain basic information regarding the condition of water resources or UPAs, and more importantly, that the FEIS does not assess the impact of the OHV routes or grazing on these resources. The BLM responds by citing the BLM's WEMO Rangeland Standards of Public Land Health, which require healthy, productive, and diverse habitats for native species, including UPAs, and protect riparian and water resources. The BLM also cites portions of the FEIS that generally discuss water quality and water resources, and the general threats posed by OHV use. However, as with the FEIS's discussion of impacts to soils, there is no discussion or analysis of the impacts flowing from the OHV route network designated by the WEMO plan, or from grazing. Again, while NEPA does not require a detailed discussion of how
Plaintiffs also contend that the FEIS does not adequately address another impact of OHV use and grazing, namely the spread of non-native plants. Plaintiffs note that the FEIS only contains a few references to the spread of non-native plants, usually in connection with discussion of a mitigation measure. Plaintiffs argue that although the BLM concluded that the route network would reduce the spread of invasive weeds, there is no analysis in the FEIS to support that conclusion.
The FEIS concludes that implementation of the BLM's motorized vehicle access network would reduce the "spread of exotic weeds," and that the reduction "would be proportionate to the linear miles of routes closed." AR 202261. The BLM cites various portions of the FEIS which mention invasive weeds and mitigation measures to address invasive weeds. The Court finds that this discussion is adequate under NEPA.
Plaintiffs contend that the FEIS fails to provide adequate information or analysis of impacts to State listed and BLM sensitive species, including, but not limited to, the Mojave fringe-toed lizard, the Barstow wooly sunflower, the desert cymopterus, and the Mojave monkeyflower. Plaintiffs provide several examples of the BLM's allegedly inadequate analysis, and they state that the examples are "representative, not exclusive." However, plaintiffs have not identified a general deficiency that would apply more broadly to the BLM's treatment of sensitive species in the FEIS, and thus the Court limits its review to the specific examples identified by plaintiffs.
With regard to the Mojave fringe-toed lizard, plaintiffs note that the "Species Account"
With regard to the Barstow wooly sunflower, the desert cymopterus, and the Mojave monkeyflower, plaintiffs argue that the BLM has failed to adequately identify and analyze the impacts of the WEMO Plan on these species. However, the FEIS discusses specific threats and impacts of the WEMO Plan to these species. See, e.g., AR 203284 (stating Alternative B can conserve most, but not all, of the known occurrences of the Barstow wooly
The FEIS states that under Alternative B (the selected BLM alternative) "[t]here would be reductions in emissions of particulate matter from BLM managed lands. This would result in corresponding declines in PM
Plaintiffs contend that the BLM's conclusion that PM
The BLM cites pieces of the record which support its conclusion that PM
Plaintiffs also contend that the FEIS is inadequate because the BLM did not discuss the impacts to air quality from increased OHV use. Plaintiffs cite statements from chapter 3 of the FEIS, "Affected Environment," in which the BLM describes general statewide trends in OHV use. See, e.g., AR 202174. However, the cited statements consist of general background information, and do not contain projections about future OHV levels under the WEMO Plan. The FEIS's discussion of impacts on air quality—aside from the failure to discuss OHV use in open areas—is sufficient.
Plaintiffs' final NEPA contention is that the BLM failed to fully analyze the cumulative impacts of the WEMO Plan, and in particular of the 5,098 OHV route network. As discussed supra, because the specific impacts of the route network are not analyzed (for example, with regard to soils, cultural resources, and water and riparian resources), the Court finds that the cumulative impacts analysis is deficient as well. Because the BLM will be required to reassess the specific impacts of the WEMO
On March 31, 2005, FWS issued a BiOp concluding that implementation of the CDCA Plan, as amended by previous amendments, the proposed NEMO and NECO bioregional plans, and the interim conservation measures in the WEMO planning area, was not likely to jeopardize the desert tortoise or to destroy or adversely modify its critical habitat. NBO 12535-12737 ("NECO BiOp"). On January 9, 2006, FWS issued a BO concluding that implementation of the CDCA Plan, as amended by previous amendments and the proposed WEMO bioregional plan, was not likely to jeopardize the desert tortoise or the Lane Mountain milk-vetch, or destroy or adversely modify desert tortoise critical habitat. WBO 14752-14949 ("WEMO BiOp"). The BiOps also contain Incidental Take Statements for the desert tortoise that permit "take"
Plaintiffs contend that in arriving at its "no jeopardy" findings, the FWS failed to adequately address the impacts of proposed activities on desert tortoise recovery. In particular, plaintiffs argue that FWS ignored a Desert Tortoise Recovery Plan issued by the FWS in 1994. Section 4 of the ESA requires the Secretary of the Interior "to develop and implement plans... for the conservation and survival of endangered and threatened species ... to the maximum extent practicable." 16 U.S.C. § 1533(f). FWS issued the Desert Tortoise Recovery Plan pursuant to Section 4(f), and that plan recommends that many activities, including livestock grazing and off-road vehicle activity, "be prohibited throughout all DWMAs because they are generally incompatible with tortoise recovery." NBO 616-17.
The Court's review of the "no jeopardy" conclusion is deferential. A final agency decision, such as a BiOp, may only be set aside if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). However, the Court "must ensure that the FWS's decisions are based on a consideration of relevant factors and we assess whether there has been a clear error of judgment." Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1065 (9th Cir.2004) (internal citations omitted). The BiOp must articulate "a rational connection between the facts found and the choice made." Pac. Coast Fed'n of Fishermen's Ass'n v. Nat'l Marine Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir.2001) (internal quotations omitted).
Plaintiffs generally assert that FWS failed to consider relevant information regarding the ability of the desert tortoise to recover in light of the effects of authorized
In order to evaluate plaintiffs' largely generalized attack,
FWS summarized its no jeopardy finding for the WEMO Plan as follows:
WBO 14880-12882. FWS's summary of the effects of the NECO Plan on the desert tortoise is similar. See NBO 12701-12704.
Plaintiffs assert that the BiOps are flawed because they do not determine the degree to which the take anticipated from activities authorized under the Plans would be deleterious to the tortoise's viability and ability to recover. In making this argument, plaintiffs cite various portions of the Desert Tortoise Recovery Plan, as well as National Wildlife Federation v. National Marine Fisheries Service (NWF), 524 F.3d 917 (9th Cir.2008). In NWF, the consulting agency (NMFS) prepared a BiOp addressing the effects of dams and related facilities on threatened and endangered fish, and found that the proposed agency action would not jeopardize the continued existence of the listed fish. Id. at 926. The BiOp "did not point to any improvement in the fishes' status" and "also omitted any clear consideration of the impact of proposed operations on listed species' chances of recovery." Id. The Ninth Circuit held that the agency's failure to consider the proposed actions' impacts on the chances of recovery as opposed to just survival, violated ESA regulations that prohibit any action "that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild." Id. at 931 (quoting 50 C.F.R. § 402.02) (emphasis in opinion); see also id. at 933 ("The only reasonable interpretation of the jeopardy regulation requires NMFS to consider recovery impacts as well as survival.").
Plaintiffs appear to suggest that FWS's no jeopardy finding is flawed because the WEMO and NECO Plans do not fully implement the Desert Tortoise Recovery Plan. However, while the Recovery Plan is certainly relevant to assessing the impact of the proposed actions on desert tortoise recovery, the ESA does not require that a Recovery Plan be fully implemented. In Fund for Animals v. Rice, 85 F.3d 535 (11th Cir.1996), the Eleventh Circuit rejected the plaintiffs' contention that a no jeopardy conclusion was flawed on the ground that it conflicted with habitat provisions in the recovery plan for the Florida Panther:
Id. at 547. The Eleventh Circuit found that FWS issued "reasonable justifications" for its no jeopardy conclusion, including the facts that there had been no verified panther sightings in the area at issue, and the contested land was not designated as critical habitat for the panther. Id.
Thus, to the extent plaintiffs' challenge is grounded in the fact that there may be substantive differences between the Recovery Plan and the WEMO and NECO Plans, that challenge fails. Plaintiffs must point to a specific aspect of the no jeopardy finding that is arbitrary and capricious, and they have not done so. As discussed above, FWS concluded that the WEMO and NECO Plans would improve conditions for the desert tortoise, and thus would promote recovery. Clearly, the plans do not promote recovery to the full extent recommended in the Recovery Plan or as much as the plaintiffs would like. However, that does not render FWS's no jeopardy findings unsupported, or arbitrary and capricious.
Plaintiffs also contend that FWS used an improper "environmental baseline" when analyzing the effects of the WEMO and NECO Plans on the desert tortoise. ESA regulations define the environmental baseline as including "the past and present impacts of all Federal, State or private actions and other human activities in the action area" and "the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation." 50 C.F.R. § 402.02. A baseline analysis "will involve consideration of the present environment in which the species or critical habitat exists, as well as the environment that will exist when the action is completed, in terms of the totality of factors affecting the species or critical habitat. The evaluation will serve as the baseline for determining the effects of the action on the species or critical habitat." Interagency Cooperation-Endangered Species Act of 1973, as Amended; Final Rule, 51 Fed.Reg. 19,932 (June 3, 1986).
Plaintiffs assert that FWS simply listed prior consultations and recited impacts from future implementation of the plans, and that FWS failed to adequately account for other authorized take from ongoing activities in the West Mojave planning area in analyzing the impact of the WEMO Plan. Specifically, plaintiffs assert that the impacts from the existing on-the-ground destruction of habitat by routes (both previously designated routes and illegally created routes) should have been included as part of the baseline, and that authorization for use of the routes and the terms of that use in the future (including, inter alia, routes networks, speed limits and seasons of use) should have been considered in the jeopardy analysis. Plaintiffs do not cite any portions of the WEMO BiOp in support of their argument that FWS did not consider the impacts of the on the ground OHV
Plaintiffs also assert that the environmental baseline did not adequately account for take of desert tortoises as a result of the expansion of Fort Irwin. Plaintiffs rely on language from the Fort Irwin BiOp, in which FWS discussed the Army's proposal to translocate desert tortoises from areas where new training exercises would occur to managed areas where the translocated tortoises would be protected. WBO 9949-9950. Plaintiffs emphasize language in the Fort Irwin BiOp in which FWS recognized that it was theoretically possible that all translocated tortoises could die: "At the worst, both translocated and resident animals will be subjected to high levels of mortality; if such an event happens, the information we gather as we monitor the translocation would be the sole benefit of the action." Id. at 9950. However, plaintiffs isolate that sentence and ignore the context of that statement:
Id. (emphasis added). The Fort Irwin BiOp concluded that based on a variety of factors, "approximately 136 adult desert tortoises may die during translocation," that this loss may be spread out over many years, and that when the estimated deaths of 136 tortoises from translocation was added to other expected deaths of tortoises (located in another area not subject to translocation) "[t]his level of mortality translates to approximately 1.03 to 2.07 percent of the 20,420 to 41,224 adult desert tortoises that Heaton et al. (2004) estimated resided in the Western Mojave Recovery Unit. Id. at 9951.
The WEMO BiOp addressed the Fort Irwin expansion and the Fort Irwin BiOp in its discussion of the current status and environmental baseline for the desert tortoise. WBO 14794, 14804-14805.
Plaintiffs' reliance on NWF is unavailing, and again the differences between that case and this one are instructive. In NWF, the agency completely excluded from the environmental baseline all impacts from "nondiscretionary" federal activities such as operations relating to irrigation, flood control and power generation. 524 F.3d at 926. The Ninth Circuit held that this exclusion was improper and that nothing in the ESA or case law "permits agencies to ignore potential jeopardy risks by labeling parts of an action nondiscretionary." Id. at 928. Here, FWS did not ignore the impact of the Fort Irwin expansion or OHV use in formulating its environmental baseline.
Relatedly, and again citing NWF, plaintiffs argue that FWS improperly compared the effect of the NECO and WEMO Plans to the effects under existing management, rather than conducting a comprehensive jeopardy analysis. In NWF, the agency segregated its jeopardy analysis as follows:
524 F.3d at 926. The Ninth Circuit rejected the agency's argument that "it may satisfy the ESA by comparing the effects of proposed FCRPS operations on listed species to the risk posed by baseline conditions [and] [o]nly if those effects are `appreciably' worse than baseline conditions must a full jeopardy analysis be made. Under this approach, a listed species could be gradually destroyed, so long as each step on the path to destruction is sufficiently modest." Id. at 930.
Here, the critical difference is that FWS concluded that the WEMO and NECO Plans improved conditions for the desert tortoise. Thus, unlike in NWF where the true adverse impact of the proposed agency action was distorted and minimized— and possibly placing the listed species in "jeopardy"—here the proposed agency actions improve the status quo. The Ninth Circuit emphasized that "[o]ur approach does not require [the agency] to include the entire environmental baseline in the `agency action' subject to review. It simply requires that [the agency] appropriately consider the effects of its actions `within the context of other existing human activities
Plaintiffs also challenge the BiOps on the ground that FWS failed to consider survival on a recovery unit basis. Plaintiffs rely on the Recovery Plan, which defines a "recovery unit" as a "geographic unit harboring an evolutionarily distinct population segment of the desert tortoise within the Mojave region," NBO 553 n. 1, and states that the goal of the Recovery Plan is to protect and recover each of these unique populations of desert tortoise: "[p]reserving viable populations of desert tortoises within each of these units is essential to the long-term recovery, viability, and genetic diversity of the species." NBO 591. Plaintiffs argue that even moderate losses in the already declining Western Mojave recovery unit could cause a rapid population decline and impede the prospects for recovery of the species. As such, plaintiffs contend that FWS "failed to consider an important aspect of the problem," and that the analyses and conclusions in the BiOps are arbitrary and capricious.
Plaintiffs do not cite any portions of the BiOps to support their argument that FWS did not consider survival on a recovery unit basis. Indeed, the WEMO BiOp states,
WBO 14882. Thus, contrary to their assertions, FWS did consider survival within the recovery units, including the depleted Western Mojave Recovery Unit. To the extent that plaintiffs suggest that FWS was required to conduct a separate jeopardy analysis for each recovery unit, there is no authority for that position. To the contrary, the ESA requires that FWS issue a jeopardy determination for the entire listed species. 16 U.S.C. § 1536(b)(3)(A) (agency shall provide a "written statement setting forth the Secretary's opinion . . . detailing how the agency action affects the species").
As part of the consultation process, FWS also concluded that the BLM's plan amendments are not likely "to result in the destruction or adverse modification" of desert tortoise critical habitat.
WBO 14814-14815; NBO 12610-12611 (similar discussion about NECO Plan); see also WBO 14798-14800, 14810-14813; NBO 12581-12583, 12594-12609.
FWS then analyzed the likely effects of the BLM's proposed action on desert tortoise critical habitat. FWS found that certain adverse impacts to portions of the habitat would continue, but that a number of adverse impacts would be lessened and/or removed. Specifically, FWS found that the BLM's plans significantly reduce the extent of cattle grazing within critical habitat, designate routes and reduce the overall route network, reduce the areas where OHVs can stop, park and camp within DWMAs, remove and reduce the amount of burros within critical habitat, and limit future cumulative ground disturbance in DWMAs to no more than one percent. WBO 14882-14884; NBO 12704-12707.
WBO 14884; NBO 12706-12707 (virtually identical statement about NEMO and NECO).
Plaintiffs first challenge the "no adverse modification" finding on the ground that it conflicts with earlier statements made by FWS in the critical habitat designation and the desert tortoise Recovery Plan. Plaintiffs emphasize that the Recovery Plan's "Priority 1" recommendations for ensuring the tortoise's survival and eventual recovery include a total prohibition of activities in critical habitat that are "generally incompatible with desert tortoise recovery," including "all vehicle activity off designated roads[,] domestic cattle grazing," and "any other surface disturbance that diminishes the capacity of the land to support desert tortoises, other wildlife, and native vegetation." NBO 616, 623, 629. Plaintiffs argue that based on these statements, OHV use and grazing should be completely prohibited in critical habitat because they are likely to cause adverse modification. Plaintiffs argue that FWS "did not explain how these activities would promote recovery," and thus that FWS's conclusions are arbitrary and capricious.
Defendants respond that there is no conflict between FWS's adverse modification analyses and statements made in the critical habitat designation or the Recovery Plan, and that while FWS recognized that there would be continued adverse impacts from OHV use and grazing, those impacts would be lessened under the WEMO and NECO Plans. Defendants argue that the general recommendations in the Recovery Plan do not supplant the detailed and specific analyses in the BiOps, and that FWS's extensive analyses of the plan amendments' impact on desert tortoise critical habitat explicitly took into account the Recovery Plan.
The Court agrees with defendants that plaintiffs have failed to show that FWS's analyses or conclusions about critical habitat
Relatedly, plaintiffs assert that FWS overlooked significant adverse impacts in order to reach the "no adverse modification" conclusion. Plaintiffs argue that FWS "largely ignored" the life cycle and migration needs of the tortoise, and that FWS failed to adequately consider impacts that disproportionately affect juveniles, such as raven predation. However, the record shows that FWS considered these factors. See, e.g., WBO 14786-14788, 14797; NBO 12573-12575, 12580 (life cycles and migration needs); see also WBO 14834-14841, 14882-14884, NBO 12666-12667, 12687-12692, 12704-12707 (discussing the BLM's proposals to set aside majority of desert tortoise critical habitat for conservation-based management); WBO 14825 (stating that in proposed ACECs, the BLM's general management strategy includes a program to reduce predation by ravens on the desert tortoise); NBO 12668 (same). Plaintiffs have not shown that FWS ignored adverse impacts; they just disagree with FWS's conclusions.
Plaintiffs also argue that FWS improperly diluted the adverse effects of the proposed plans by analyzing the scale of those effects in light of the "vast areas" of the critical habitat units. Plaintiffs rely on Gifford Pinchot Task Force v. U.S. Fish & Wildlife Service, 378 F.3d 1059, 1075 (9th Cir.2004), which cautioned that "[f]ocusing solely on a vast scale can mask multiple site-specific impacts that, when aggregated, do pose a significant risk to a species." However, the Gifford Pinchot court found that, in fact, FWS had properly considered local impacts:
Id. Similarly, although the critical habitat here is "vast," the record shows that FWS considered important local effects. See, e.g., WBO 14874 (addressing BLM's proposal to designate 15 miles of new open routes and approximately 20 miles of open routes as competition routes adjacent to Spangler Hills Off-highway Vehicle Management Area), 14883 (discussing impact of maintaining a corridor for competitive events along Johnson Valley-to-Parker route). Plaintiffs have not identified any localized risk that was "improperly hidden by use of large scale analysis," and instead simply disagree with FWS's assessment of those risks. As in Gifford Pinchot, this
Plaintiffs next assert that FWS improperly focused its analysis of effects to critical habitat in the DWMAs and largely ignored critical habitat outside of DWMAs. Plaintiffs note that over 215,000 acres of critical habitat remain outside DWMAs in the NECO (NBO 12600, 12603), and approximately 18,000 acres of critical habitat remain outside DWMAs in the WEMO (WBO 14834-14835), and they emphasize that critical habitat outside of DWMAs is subject to less protection.
A review of the BiOps, including the portions cited by plaintiffs, refutes plaintiffs' argument that FWS overlooked critical habitat outside of the DWMAs. In the WEMO BiOp, FWS analyzed the location, status and effects to the critical habitat outside of the DWMAs. For example, FWS discussed 9,678 acres of the Ord-Rodman critical habitat unit that were not included in a DWMA:
WBO 14234. Plaintiffs challenge the above-quoted passage by asserting that FWS "speculat[es] (without any citation or reference) that some areas `were degraded prior to the designation of critical habitat' and noting that in other areas there remains `less disturbed' habitat because `the level of off-road vehicle use is lower.'" Rev. Reply at 19:6-8. However, there is no requirement that FWS provide citations or references for its statements that certain areas were degraded and others less disturbed, and the case law is clear that courts should not fly-speck a BiOp for this level of detail.
FWS also addressed other critical habitat areas located outside DWMAs in WEMO. See WBO 14834-14836 (discussions of critical habitat outside DWMAs in Fremont-Kramer, Superior-Cronese, and Pinto Mountain critical habitat units). FWS concluded that disturbance within critical habitat, including those portions located outside DWMAs, was not likely to exceed the one percent limit on cumulative future ground disturbance:
WBO 14836. As these portions of the BiOps demonstrate, FWS did not ignore or overlook critical habitat outside the DWMAs.
The NEMO BiOp contains a similar level of detail in its discussion of critical habitat located outside of DWMAs. See e.g., NBO 12600-12601 (Chemehuevi critical habitat unit), 12603-12604 (Chuckwalla critical habitat unit), 12704-12707 (summarizing effects of plan on critical habitat located within and outside DWMAs). FWS explained why BLM did not include particular areas of critical habitat within DWMAs. See e.g., NBO 12600 ("In the northwest corner of the critical habitat unit, in the upper Cadi Valley, the Bureau did not include an area with a checker-boarded land ownership"). In a number of instances, the non-DWMA critical habitat is located within Joshua Tree National Park, conservation areas, wilderness areas, and other areas that receive increased protection. See, e.g., NBO 12600 (15,843 acres of non-DWMA critical habitat in Chemehuevi critical habitat unit are included in wilderness "which provides the highest level of protection afforded any land use class" in the CDCA, and 5,615 acres are located in multi-species wildlife habitat management area "which provides a level of protection somewhat greater than Class M lands"), 12687 ("The amount of critical habitat captured within [BLM's] Chuckwalla [DWMA], when combined with additional critical habitat within Joshua Tree National Park and the Chocolate Mountains Aerial Gunnery Range, will promote the conservation role and function of Chuckwalla Critical Habitat Unit."); see also NBO 11892, 12501, 12738 (maps of NECO and NEMO planning areas showing non-DWMA critical habitat located within other protected areas such as Joshua Tree National Park and wilderness areas).
Plaintiffs contend that FWS improperly found that there was no adverse modification of critical habitat unless there was complete extirpation of that habitat. For example, plaintiffs cite FWS's statements that "[w]e are unaware of any research that conclusively shows the density at which roads would be likely to extirpate desert tortoises from a region." WBO 14817; NBO 12613. However, that statement is contained within a broader assessment of the state of existing scientific knowledge on the effects of roads on desert tortoises, see WBO 14816-14818; NBO 12613-12614, and is it not an articulation of the standard that FWS applied in analyzing whether the WEMO or NECO Plans adversely modified desert tortoise critical habitat. In the same paragraph containing the sentence quoted by plaintiffs, FWS also noted, inter alia, that "[i]ntuitively fewer desert tortoises are likely to be killed if fewer roads are available for travel." WBO 14817.
Similarly, FWS analyzed the impacts of the BLM's designation of certain routes as open on critical habitat. See, e.g., WBO 14874 ("[F]or several subregions, a proportionately higher number of route closures are in areas characterized by bajada topography. Conversely, a proportionately higher number of routes were designated as open in more mountainous terrain. Desert tortoises are generally more abundant on bajadas and valleys than in mountains areas; also, instances of authorized and unauthorized off-road travel would likely occur less frequently in mountainous terrain.").
Plaintiffs next assert that FWS arbitrarily and incorrectly found that OHV use of washes in the Chemehuevi critical habitat unit in NECO is low, thus masking the extent of the adverse effects from OHV use in that area. Plaintiffs note that FWS observed that washes in the NECO planning area are "wide, flat, sandy, relatively free of rocks, and lined with tall trees [and that] [t]hese features are attractive to recreational users," NBO 12605, and that FWS recognized that "any wash that can support a vehicle within large acreages is open to use." NBO 12683. However, the fact that FWS recognized a theoretical negative impact does not render FWS's specific analysis arbitrary. Indeed, as FWS found in assessing OHV use of washes in NECO:
NBO 12683. Plaintiffs criticize FWS for extrapolating the information about OHV use of certain washes in NECO to OHV use of open washes in NECO more generally. However, FWS "acknowlege[d] that the information available in the final environmental impact statement for the [NECO] is not comprehensive. It is, however, the only published documentation of the level of use that was available to us. Any attempt to gather new information on the level of vehicle use in the open wash zones will require years to gain a comprehensive view of use over such a large area; consequently, we could not obtain this information during the course of this consultation." NBO 12683-12684. Thus, contrary to plaintiffs' arguments, FWS did explain how it reached its conclusion that OHV use of the washes was low, and why that use would not adversely modify desert tortoise critical habitat.
Plaintiffs also contend that FWS did not appropriately consider the extent to which OHV use fragments critical habitat. FWS found that while major highways constitute a barrier to movement, "[u]npaved roads that are used infrequently likely do not pose a threat of fragmentation." WBO 14876. FWS also concluded that "because the disturbance and loss of habitat would likely occur through the implementation of numerous actions, separated through the desert wildlife management area by distance and over time, we do not anticipate that habitat is likely to be fragmented to the extent that the function and conservation role of the critical habitat unit as a whole is compromised." WBO 14836. Similarly, plaintiffs take issue with FWS's treatment of the impact of "road maintenance" on critical habitat. While plaintiffs argue that FWS's analysis is flawed, plaintiffs do not cite to any evidence in the
Plaintiffs also assert that FWS did not consider the likely increase in OHV use when assessing impacts. As support, plaintiffs rely on statements from the FEIS in which the BLM discusses the great interest in and demand for OHV recreational opportunities. However, there is nothing inconsistent about the BLM's general statement that the public is increasingly interested in OHV recreation, and FWS's conclusions in the BiOps based upon the information assessed that impacts from OHV use will be lessened as a result of route designations and closures. Somewhat relatedly, plaintiffs also assert that FWS "knew that the number and amount of routes that remained on the ground and would continue to be used in critical habitat was not likely to decrease simply because of the adoption of the plans," and they quote this sentence from the WEMO BiOp: "Realistically, however, the route network in the western Mojave Desert at the current time consists of any route that shows evidence of prior use." WBO 14875. However, plaintiffs' selective quotation is misleading, as a full reading of the quoted paragraph demonstrates:
WBO 14875 (quoted sentence emphasized).
Plaintiffs also contend FWS overlooked and minimized the negative impact of grazing on desert tortoise critical habitat. Plaintiffs assert that FWS's recognition that livestock grazing "will continue" to adversely affect critical habitat by reducing tortoises' forage and shelter, crushing tortoise burrows, and rendering critical habitat more prone to wildfire, is inconsistent with FWS's conclusion that the grazing permitted under the WEMO and NECO Plans would not adversely modify desert tortoise critical habitat.
However, a review of the BiOps shows that FWS conducted a detailed and extensive analysis of livestock grazing and its impacts, and that the "no adverse modification" conclusion is supported by the record. In the WEMO BiOp, FWS noted that within the 1,670,479 acres of critical habitat within the action area, grazing is authorized only on 110,000 acres:
WBO 14873. The last sentence refers to the BLM's management prescriptions for the Ord-Mountain allotment, which require the exclusion of cattle from 34,185 acres between March 15 to June 15 of each year, when forage levels fall below 230 pounds per acre. WBO 14864.
The NECO BiOp contains similar analyses and conclusions about grazing and the impact on desert tortoise habitat. In the NECO, cattle grazing is only permitted within the Lazy Daisy allotment, which is contained within the Chemehuevi DWMA. NBO12693-12695. As in the WEMO BiOp, FWS found that the removal of cattle from desert wildlife management areas when ephemeral forage production is less than 230 pounds per acre from March 15 through June 15 "should, to some degree, protect the primary constituent elements of critical habitat related to the availability of food." NBO 12693. FWS recognized, however, that continuing grazing at "even these lower levels may prevent desert tortoises from acquiring enough nutrition in good years to survive through times that provide fewer resources." Id. However, FWS explained that "[t]he overall effect of an action on the primary constituent elements of critical habitat . . . is a combination of the intensity and scale of the effect." NBO 12694. FWS evaluated the scale of the impact of cattle grazing on the primary constituent elements within the Chemehuevi Critical Habitat Unit, and found: (1) utilization data from the Lazy Daisy allotment showed that utilization was in the 0 to 10 percent range, which was characterized as "none to slight" and that utilization levels were expected to continue to be low; (2) "all health standards were being met" in the allotment; (3) the BLM removed approximately 21,600 acres of high quality desert tortoise habitat from the Lazy Daisy allotment; (4) "some amount of grazing within the allotment occurs either outside of the boundaries of the desert wildlife management area and critical habitat or inside at elevations that generally do not support desert tortoise habitat"; and (5) that the BLM had taken steps that reduced grazing from past levels. NBO 12695. "For these reasons, we conclude that the intensity of grazing on the Lazy Daisy Allotment is low and that management of grazing within the northern and eastern Colorado Desert planning area is compatible with the function and conservation role of the Chemehuevi Critical Habitat Unit. Id.
Plaintiffs also contend that FWS failed to assess the aggregate effects from all activities authorized by the plans, such as areas where tortoises are subject to both grazing and OHV use within critical habitat. Again, however, plaintiffs ignore the actual language and analysis contained in the BiOps, which show that FWS evaluated the degree to which impacts in the aggregate would affect critical habitat. See WBO 14882-14884; NBO 12704-12707.
Plaintiffs contend that FWS failed to use the best scientific and commercial data in reaching its conclusions in the BiOps. To a large extent, plaintiffs' arguments simply repeat and repackage the assertions discussed above regarding FWS's consideration
Citing WBO 14817-18, plaintiffs also generally criticize FWS "for dismissing or ignoring findings in other studies." Plaintiffs' motion does not specify which studies plaintiffs contend FWS dismissed or ignored, nor do plaintiffs advance any argument as to why FWS's analysis was unsupported or arbitrary. The Court assumes that at least one study to which plaintiffs are referring is the Hoff and Marlow (2002) study discussed on WBO 14817-14818 (study found at WBO 4717-4724) regarding road density and desert tortoise mortality. FWS's discussion of this study is detailed, and FWS explains why it decided not to extrapolate certain information from the study. WBO 14817. Further, as a review of the BiOp demonstrates, FWS did not entirely dismiss or ignore that study. Plaintiffs have failed to show anything arbitrary or capricious about FWS's assessment of this study.
Plaintiffs also contend that FWS should have considered certain studies discussing the deleterious effects of grazing and OHV use. For example, plaintiffs argue that FWS ignored a study (Bury and Luckenbach (2002)) finding "current data suggest that the operation of ORVs in the western Mojave Desert results in major reductions in habitat and tortoise numbers, and possibly the body mass of surviving tortoises" and that studies "suggest both direct and sublethal effects on tortoises from operation of ORVs in their habitats. Such effects occur in areas with low to moderate ORV activities, which occupy large portions of the Mojave Desert." WSupp 465, 469 (Bury and Luckenbach study). Defendants argue that this study was not relevant to FWS's analysis of the WEMO and NECO planning areas because the study compared the effects of OHV use in open areas—i.e., areas similar to the Imperial Sand Dunes Recreation Area, where OHVs are for the most part permitted to go anywhere at any time—with areas closed to OHV use. In WEMO and NECO, in contrast, OHV use is materially different because such use is limited to a designated route network and navigable washes. Plaintiffs do not respond to this argument, nor do plaintiffs articulate why FWS was required to extrapolate the findings of the Bury and Luckenbach study to its analyses of the WEMO and NECO planning areas, particularly given the extensive discussions in both BiOps about the effects of OHV use.
Plaintiffs seek judicial notice of three scientific studies that they contend FWS should have considered in its assessment of the WEMO and NECO Plans. See Docket No. 122, Ex. 3 (Jennings (2002)); Ex. 4 (Oftedal et al. (2002)); Ex. 5 (Heaton (2007)). Defendants object to the Court taking judicial notice of studies outside the administrative record, while plaintiffs assert that these documents assist the Court in determining whether FWS considered all relevant factors.
Under Section 7 of the ESA, FWS is required to specify whether any "incidental taking" of protected species will occur as a result of the agency action. See 16 U.S.C. § 1536(b)(4). "Take" is defined to include harming, harassing, trapping, pursuing, collecting, shooting, capturing, wounding, or killing a protected species. See id. at § 1532(19). If FWS determines that an incidental taking will result, FWS must prepare an ITS which identifies areas where members of the protected species are at risk. Any taking which is subject to an ITS, and in compliance with the terms and conditions of the statement, is not a prohibited taking under the ESA. See 16 U.S.C. § 1536(o)(2). As relevant here, the ITS must specify (1) the amount or extent of such incidental taking on the species; (2) the reasonable and prudent measures necessary to minimize such impacts; and (3) the terms and conditions that must be complied with to implement the reasonable and prudent measures. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i)(1)(i).
On November 30, 2007, FWS issued revised ITSs for the NECO and WEMO BiOps, which cover livestock grazing, removal of burros, and casual use activities within the action areas that are authorized by the approval of the CDCA Plan, as amended by the NECO and WEMO plans. NSupp ITS 1177, WSupp ITS 1020-21.
Plaintiffs raise four challenges to the amended ITSs. First, plaintiffs contend that FWS was not permitted to amend the ITSs, and instead was required to re-initiate consultation with the BLM and issue new BiOps with the new ITSs. Second, plaintiffs contend that the amended ITSs are invalid because FWS only considered direct take causing tortoise death and disregarded take due to habitat modification and degradation. Third, plaintiffs contend that the numbers of allowable take and re-initiation triggers are irrational. Finally,
FWS amended the ITSs to address this Court's opinion reviewing the incidental take statement accompanying the BiOps for the Imperial Sand Dunes Recreation Area. See CBD II, 422 F.Supp.2d at 1137-41 (holding invalid an ITS that did not provide specific estimate for take). The amended ITSs state:
NSupp ITS 1175-76.
Plaintiffs contend that FWS was not permitted to amend the ITSs, and instead was required to reinitiate consultation and create an entirely new BiOp. As support, plaintiffs rely on Gifford Pinchot Task Force v. U.S. Fish & Wildlife Service, 378 F.3d 1059 (9th Cir.2004). In Gifford Pinchot, FWS amended several BiOps in a number of substantive ways. The Ninth Circuit held that these amendments were improper.
Id. at 1077. However, under the ESA, an ITS is not part of the jeopardy analysis, but instead provides an exemption from liability under Section 9 of the ESA. See Arizona Cattle Growers' Ass'n v. U.S. Fish & Wildlife Serv., 273 F.3d 1229, 1239, 1242 (9th Cir.2001). An ITS is issued after FWS completes its jeopardy analysis. See 16 U.S.C. § 1536(b)(4) ("If after consultation under subsection (a)(2) of this section, the Secretary concludes that" the agency action and any incidental taking will not violate the substantive provisions of ESA § 7(a)(2), then "the Secretary shall provide the Federal agency" with an incidental take statement). In Gifford Pinchot, the BiOps were substantively amended, thus raising the possibility that the amendments affected the jeopardy or critical habitat analyses. Gifford Pinchot, 378 F.3d at 1077. Here, FWS amended the ITSs, not the BiOps, and specifically determined that the previously issued BiOps remained sound. See NSupp ITS 1176; WSupp ITS 1019 (concluding that "[t]he information presented in this amendment does not, in any way, alter the conclusions reached in" the NECO or WEMO BiOps). Because FWS concluded that the amendments did not alter the analyses or conclusions contained in the BiOps, FWS was not required to reinitiate consultation with the BLM. See 50 C.F.R. § 402.16 (reinitiation required when, inter alia, "new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered," or "[i]f the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion").
Plaintiffs have not identified any way in which the amendments to the ITSs substantively affect the jeopardy or critical habitat analyses, and instead the essence of their challenge is that FWS is procedurally prohibited from amending an ITS. However, plaintiffs do not cite any authority holding that an amendment to an ITS is unlawful as a matter of law, and the Court declines to so hold. Indeed, the facts of this case demonstrate why there are circumstances when proactive amendment might be necessary, as FWS amended the ITSs because the ITSs shared some of the same deficiencies identified in CBD II, 422 F.Supp.2d at 1137-41.
Plaintiffs also raise several substantive challenges to the amended ITSs. Plaintiffs contend that FWS disregarded take due to habitat modification and degradation which kills or injures tortoises by impairing essential behaviors such as feeding and sheltering. Plaintiffs argue that the ITSs fail to account for injury that will result from livestock grazing due to collapsed burrows used for sheltering or reduction of native forage critical to tortoise survival. However, both BiOps discuss at length the amount of grazing permitted within the planning areas; the BLM's management prescriptions governing authorized grazing activities; and the impacts on the species'
Plaintiffs appear to equate any level of negative impacts with a "take" under the ESA. However, for habitat degradation to be considered a take, and therefore provide FWS with the authority to regulate and exempt such a take in an ITS, there must be "significant impairment of the species' breeding or feeding habits and [proof] that the habitat degradation prevents, or possibly, retards, recovery of the species." Nat'l Wildlife Fed'n v. Burlington N.R.R., 23 F.3d 1508, 1513 (9th Cir. 1994). As set forth in the BiOps, FWS concluded that "[t]he measures proposed by [BLM] should ensure that habitat for the desert tortoise on public lands is not substantially degraded from its current condition." WBO 14859.
Plaintiffs also argue that the ITSs also failed to include injury from loss of forage and collapsed burrows due to OHV use in washes. However, FWS did analyze the likely effects of OHV use on desert tortoise habitat, and concluded that "the Bureau's criteria for allowing vehicular use of a wash speaks directly to the issue of these effects; specifically section 3.9.5 of the final environmental impact statement ... states that `washes can be considered routes of travel only if soil stability is not adversely affected consequent to passage of vehicles.'" NBO12690; see also id. ("Vehicular use that does not damage the banks of washes will avoid most burrows and caliche caves. Again, the same passage we quoted in the previous paragraph states that `washes can be considered routes of travel only if wash banks are not compromised.'"). Plaintiffs have not shown that FWS's decision not to include injury from habitat degradation due to grazing or OHV use in washes was arbitrary or capricious.
An ITS is required to contain measurable guidelines to determine whether incidental take is exceeded. See 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i)(4). In the ITSs, FWS estimated that 19 desert tortoises per year in WEMO and 32 desert tortoises per year in NECO and NEMO are anticipated to be taken incidental to activities authorized under the plan amendments. WSupp ITS 1033; NSupp ITS 1194. FWS explained in the ITS for WEMO,
Plaintiffs raise several challenges to FWS's selection of the numbers of allowable take. Plaintiffs contend that the numerical values bear no rational connection to the biological analysis in the BiOps. Plaintiffs note that FWS staff initially believed that it was impossible to specify a number of take. However, the record reflects that FWS staff developed a methodology for calculating the number of desert tortoises in the action area, and then for estimating anticipated take. See, e.g., WSupp ITS 526-532 (emails from FWS staff discussing process). The amended ITSs describe this methodology in detail:
WSupp ITS 1023.
Plaintiffs criticize FWS for the manner in which it estimated densities of desert tortoises outside of desert wildlife management areas and critical habitat in the action area. For those areas, FWS took the DWMA density numbers and multiplied by 0.1. NSupp ITS 1181; WSupp ITS 1023. However, as FWS explained,
WSupp ITS 1023. This discussion demonstrates that there is a reasonable scientific basis for FWS's methodology, and that it is all that is required. Moreover, as the Ninth Circuit recently emphasized in Lands Council, the law "requires us to defer to an agency's determination in an area involving a high level of technical expertise. We are to be most deferential when the agency is making predictions, within its area of special expertise, at the frontiers of science." 537 F.3d at 993 (internal citations and quotations omitted); cf. Greenpeace Action v. Franklin, 14 F.3d 1324, 1336 (9th Cir.1992) ("When an agency relies on the analysis and opinion of experts and employs the best evidence available, the fact that the evidence is `weak,' and thus not dispositive, does not render the agency's determination `arbitrary and capricious.'").
Plaintiffs also challenge FWS's treatment of juvenile desert tortoises in its estimation methodology. The ITSs state,
WSupp ITS 1024-1025. Contrary to plaintiffs' assertions, FWS did not "assum[e] that the take of smaller individuals omitted from the calculations would be roughly offset by FWS' inclusion of areas within critical habitat that may have had lower density of tortoises in the calculation." Rev. MSJ at 22:11-13. Instead, FWS simply recognized that due to the limitations of the line-distance sampling data, the estimates could be inflated in some regards, and lower in others. The recognition of a limitation in the data—which FWS also considers to be the best available scientific information—demonstrates that FWS
Plaintiffs also challenge the "reinitiation triggers" as arbitrary. Plaintiffs contend that the triggers should have been set lower because of the difficulty in detecting tortoise deaths and assigning a definitive cause of death. Plaintiffs rely on an FWS working paper, which stated that "we are assuming that finding 10 percent of the animals that are killed or injured is a reasonable estimate." WSupp ITS 00780. However, as FWS notes, the working paper was a partial, early draft of the revised ITS, and the statement about a ten percent trigger was made in the context of analyzing grazing activities in marginal habitat with low numbers of desert tortoises. See id. The final amended ITSs apply to the detection of desert tortoises throughout the planning areas and thus in areas of both marginal and suitable habitat, and lower and higher densities of desert tortoises. See WSupp ITS 1021-1033; NSupp ITS 1178-1194. The ITSs contain detailed explanations of the various factors FWS considered in arriving at the take numbers and reinitiation triggers, and plaintiffs have not shown that FWS "`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 an explanation that is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.'" Lands Council, 537 F.3d at 993 (quoting 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)); see also Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658-59, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) ("With regard to the various statements made by the involved agencies' regional offices during the early stages of consideration, the only "inconsistency" respondents can point to is the fact that the agencies changed their minds-something that, as long as the proper procedures were followed, they were fully entitled to do.").
Plaintiffs also suggest that the amended ITSs are internally inconsistent because they state both that finding carcasses is problematic due to the presence of numerous scavengers that are likely to find dead desert tortoises soon after they die, WSupp ITS 1021, and also that FWS expects that the cause of any injury or death resulting from grazing or casual use "is likely to be reasonably identifiable." Id. 1035-1036. These statements are not contradictory because there is a difference between locating desert tortoises that have been injured or killed in the planning areas, and identifying the cause of death or injury once a tortoise has been found. See also WSupp ITS 1036 ("For example, desert tortoises that are killed or injured by livestock will show signs of trampling; individuals may also be trapped in cattle guards. Desert tortoises that are killed or injured as a result of casual use activities will most likely be crushed.").
Plaintiffs also raise several challenges to the reasonable and prudent measures ("RPMs") and corresponding terms and conditions ("T&C") contained in the ITSs. The ESA requires an ITS to specify those RPMs the Secretary deems "necessary or appropriate" to minimize the impact on listed species and set forth T&Cs implementing each RPM. 16 U.S.C. § 1536(b)(4)(C)(ii), (iv).
Plaintiffs first challenge RPM 4 and T&C 4 in the ITS for the NECO Plan. RPM 4
Plaintiffs' challenges lack merit. First, RPM 4's usage of "substantial numbers" does not render that RPM hopelessly vague, particularly given relative specificity of the ITS as a whole, including the specific take numbers and reinitiation triggers. With regard to T&C 4, plaintiffs concede that monitoring is essential to minimizing take from OHV use in open washes; plaintiffs' quibble is that there are no additional measures specified to minimize take. However, that is not a basis for setting aside the ITS as invalid. Plaintiffs' reliance on CBD II, 422 F.Supp.2d at 1140-41, is unavailing. In that case, an RPM directed the BLM to "minimize the potential for incidental take of desert tortoises from recreational use, facility construction, and maintenance activities." Id. at 1140. However, the corresponding T&C only addressed facility construction and maintenance activities, and did not address recreational use. Id. Here, T&C 4 implements the corresponding RPM.
Plaintiffs next challenge RPM 1 in the WEMO ITS. RPM 1 states "The Bureau must monitor its activities to ensure that the level of incidental take is commensurate with the analysis contained in the Biological Opinion." WSupp ITS 1034. Plaintiffs argue that because the WEMO BiOp noted that "[c]learly, establishing a well-defined system of marked routes would reduce the density of routes and thereby reduce mortality of desert tortoises," WBO 14875, FWS was required to devise an RPM that minimized the impact of the authorized route network by, for example, reducing overall route density or closing redundant routes. However, the ESA grants FWS discretion to identify RPMs that it finds "necessary or appropriate," 16 U.S.C. § 1536(b)(4)(C)(ii), and does not require FWS to specify any particular RPMs. See Bear Lake Watch, Inc. v. FERC, 324 F.3d 1071, 1074 (9th Cir. 2003) (analyzing similar language in Federal Power Act, and holding that "where Congress has not directly said what `necessary or appropriate' means," Congress "left the complex policy decision about how far [the agency] should extend its regulatory tentacles up to [the agency] itself."). Moreover, the RPMs plaintiffs contend should have been included—such as reducing overall route density or closing redundant routes—are not "minor changes [to the proposed action] that do not alter the basic design, location, duration, or timing of the action," Interagency Cooperation-Endangered Species Act of 1973, as Amended; Final Rule, 51 Fed.Reg.19,937 (June 3, 1986), but rather substantive changes to the BLM's proposed action. Plaintiffs also criticize T&C 1, which implements RPM 1, because it requires development of a monitoring plan but does not include any timetables of specific requirements for monitoring. However, T & C 1 contains numerous specific details, and is directly tied to implementing RPM 1:
WSupp ITS 1035. Plaintiffs have not shown anything arbitrary or capricious about this T & C.
In the January 9, 2006 BiOp, FWS also concluded that the WEMO Plan amendment was not likely to jeopardize the continued existence of the Lane Mountain milk-vetch. WBO 14921.
WBO 14921-14922.
Plaintiffs contend that FWS failed to assess the ability of the LMMV to survive and recover in the face of the effects of the WEMO Plan. Plaintiffs argue that FWS's no jeopardy finding was based on an unsupported assumption that route closures will improve conditions. Plaintiffs note that FWS recognized that "administrative designation of a route as closed may be ineffective" until funding is available to "eliminate the road on the ground." WBO 14920. However, plaintiffs ignore the next portion of that same sentence, where FWS explained that "funding that the Army has committed to provide to mitigate for the effects of the expansion of Fort Irwin should enable the Bureau to implement numerous route closure projects." Id. Thus, FWS's reliance on route closures was supported. See Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917, 936 (9th Cir.2008) (agency may rely on "clear, definite commitment of resources for future improvements").
Plaintiffs also argue that FWS assumed impacts of dust on LMMV pollinators were "minor" although no studies had been done. WBO 14919. However, in reaching this conclusion, FWS stated,
WBO 14919. As this discussion demonstrates, FWS had a reasoned basis for its conclusion that the effects of dust will be minor: the U.S. Geological Survey's evaluation, and the fact that LMMV reproduce in close proximity to the routes of travel. There is nothing arbitrary or capricious about the FWS's assessment in this regard. See Oregon Trollers Ass'n v. Gutierrez, 452 F.3d 1104, 1120 (9th Cir.2006), cert. denied, 549 U.S. 1338, 127 S.Ct. 2028, 167 L.Ed.2d 762 (2007) ("Bereft of any contrary science, plaintiffs' bare allegation that the agency's distinction conflicts with the `best scientific evidence available' fails.").
Plaintiffs also argue that the "no jeopardy" decision is flawed because it is based on FWS's assessment of the WEMO Plan's measures to avoid or reduce adverse effects to the LMMV, such as the provision that no permits will be issued for activities that result in the loss of LMMV. Plaintiffs argue that the permitting measure "may have little bearing on whether further loss
Next, plaintiffs argue that although more than half of the known occurrences of LMMV are within the Fort Irwin expansion area, FWS failed to examine the impact the potential loss of this habitat will have on survival and recovery. However, the BiOp at issue here—the January 9, 2006 WEMO BiOp—only examined the impact of the West Mojave plan; the Fort Irwin expansion was examined in an entirely different BiOp that is not challenged in this case. The January 9, 2006 BiOp explained, by way of background,
WBO 14915. Thus, to the extent that plaintiffs contend that FWS did not examine the direct impact of the Fort Irwin expansion, that claim is misplaced in this lawsuit.
Finally, plaintiffs argue that FWS incorrectly stated that the one percent cap on new ground disturbance applied specifically within the West Paradise and Coolgardie Mesa conservation areas. Plaintiffs assert that the one percent cap only applies to DWMAs as a whole, and not to particular subsections of the DWMAs. In the WEMO BiOp, FWS stated that one of the protective measures was "[a] limit of one percent of new disturbance within the area of critical environmental concern to reduce the loss of Lane Mountain milk-vetch, which will ensure that most individuals and their habitat in areas that are essential to their conservation will not be exposed to the adverse effects of human activities." WBO 14918. Both West Paradise
For the foregoing reasons, the Court GRANTS in part and DENIES in part plaintiffs' motion for summary judgment, and GRANTS in part and DENIES in part defendants' motion for summary judgment. (Docket Nos. 159-161). The Court GRANTS summary judgment in favor of plaintiffs on the FLPMA claims, GRANTS summary judgment on some of the NEPA claims in favor of plaintiffs, and GRANTS summary judgment on some of the NEPA claims in favor of defendants, and GRANTS summary judgment in favor of defendants on the ESA claims.
AR 230282 (from "1985 and 1987 Route Designations: Barstow and Ridgecrest Resource Areas," by Bruce DiGennaro, Sept. 15, 1987).
