SUSAN ILLSTON, United States District Judge
On February 28, 2014, the Court held a hearing on the parties' cross-motions for summary judgment. For the reasons set forth below, the parties' cross-motions for summary judgment are GRANTED IN PART and DENIED IN PART.
This dispute marks the continuation of plaintiffs' challenge to the administration by the Bureau of Land Management ("BLM") of the Imperial Sand Dunes Recreation Area ("ISDRA" or "Dunes"), and the biological opinions related to the Dunes prepared by the U.S. Fish and Wildlife Service ("FWS") in accordance with the Endangered Species Act ("ESA"). The lengthy factual and procedural history of FWS and BLM's management actions
In that decision, the Court held that FWS's 2005 biological opinion ("BiOp") for the 2003 ISDRA Recreation Area Management Plan (the "2003 RAMP") violated the Endangered Species Act in various respects with regard to two listed species, the Peirson's milk-vetch ("PMV") and the desert tortoise. Id. at 1121-22. The Court also held that FWS unlawfully excluded certain areas when it designated critical habitat for the PMV in 2004. Id. at 1122. Finally, the Court held that the BLM violated the National Environmental Policy Act by failing to consider interim off-highway vehicle ("OHV") closures
In response to the Court's 2006 opinion, in 2008 FWS issued a new critical habitat designation for the PMV. 73 Fed. Reg. 8748 (Feb. 14, 2008). Plaintiffs and other groups unsuccessfully challenged the new critical habitat designation. See Maddalena v. FWS, No. 3:08-cv-02292-H-AJB, 2010 WL 9915002 (S.D.Cal. Aug. 5, 2010). In June 2013, the BLM also issued a new Record of Decision adopting a new Recreation Area Management Plan (the "2013 RAMP") for the Dunes. Under the 2013 RAMP, the 26,000 acre North Algodones Dunes Wilderness remains closed to OHVs, as will an additional 9,261 acres of PMV critical habitat. The remainder of the Dunes — over 127,000 acres — will be opened to OHV use. Prior to issuing the Record of Decision, the BLM prepared a new Environmental Impact Statement (the "2013 EIS") analyzing the 2013 RAMP. Finally, after engaging in consultation pursuant to Section 7(a)(2) of the ESA, in November 2012, FWS issued a new BiOp concluding that implementing the 2013 RAMP is not likely to jeopardize the continued existence of the PMV or the desert tortoise.
On September 16, 2013, plaintiffs filed a third amended complaint challenging the 2013 RAMP, the 2013 EIS and 2012 BiOp under the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq., the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., the Federal Land Policy and Management Act
Plaintiffs generally allege that the PMV is particularly threatened by OHV recreational use in the Dunes, and that the 2013 management plan for the Dunes does not contain sufficient safeguards to ensure against jeopardizing the continued existence of these species. Defendants are the Bureau of Land Management ("BLM"), which manages the ISDRA, and the U.S. Fish and Wildlife Service ("FWS" or "Service"), which consults with the BLM and is required to evaluate BLM actions that affect the Peirson's milk-vetch. Defendant-intervenors are a number of organizations representing OHV recreationists.
"Neither the ESA nor NEPA supply a separate standard for our review, so we review claims under these Acts under the standards of the APA." San Luis & Delta-Mendota Water Authority v. Jewell, 747 F.3d 581, 601, 2014 WL 975130, at *9 (9th Cir. Mar. 13, 2014). Pursuant to Section 706 of the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., 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 APA precludes a trial court reviewing an agency action from considering any evidence outside of the administrative record available to the agency at the time of the challenged decision. See 5 U.S.C. § 706(2)(E); Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985); Havasupai Tribe v. Robertson, 943 F.2d 32, 34 (9th Cir.1991). "Because this is a record review case, we may direct that summary judgment be granted to either party based upon our de novo review of the administrative record." Oregon Natural Desert Ass'n v. Bureau of Land Management, 625 F.3d 1092, 1108 (9th Cir. 2010); Riddell v. Unum Life Ins. Co. of Am., 457 F.3d 861, 864 (8th Cir.2006) (explaining that judgment on the administrative record "is a form of summary judgment").
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
For any federal action that may affect a threatened or endangered species (or its habitat), Congress has required by statute that the agency contemplating the action (here the BLM) must consult pursuant to Section 7(a) of the ESA with the consulting agency (here the FWS) to "insure" that the federal action "is not likely to [1] jeopardize the continued existence of any endangered species or threatened species or [2] result in the destruction or adverse modification" of the designated critical habitat of such species. 16 U.S.C. § 1536(2). After the agencies engage in the consultation process, the consulting agency issues a BiOp.
Under Section 7(b)(4) of the ESA, "[t]he FWS must issue an Incidental Take Statement if the BiOp concludes no jeopardy to listed species or adverse modification of critical habitat will result from the proposed action, but the action is likely to result in incidental takings." Oregon Natural Resources Council v. Allen, 476 F.3d 1031, 1036 (9th Cir.2007) (citing 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i); and Ariz. Cattle Growers' Ass'n, 273 F.3d 1229, 1242 (9th Cir.2001)). "Both the BiOp and the Incidental Take Statement must be formulated by the FWS during the formal consultation process; indeed, the regulations specifically require the FWS to provide the Incidental Take Statement `with the biological opinion.'" Id. (quoting 50 C.F.R. § 402.14(g), (i)(1)). Incidental take in compliance with the terms and conditions in the ITS "shall not be considered to be a prohibited taking of the species concerned." 16 U.S.C. § 1536(o)(2). Section 7 consultation must be reinitiated when the amount or extent of taking specified in the ITS is exceeded, as well as when new information reveals impacts of the action on listed species that were not previously considered or when the agency action is changed in a way that causes impacts on listed species that were not previously considered. See 50 C.F.R. § 402.16(a)-(c).
16 U.S.C. § 1536(b)(4).
The 2012 BiOp does not contain an ITS for the PMV. Plaintiffs contend that FWS was required to prepare an ITS for the PMV, while defendants contend that an ITS is only required for listed fish and wildlife, not for listed plants. The parties' dispute involves the interplay of Sections 7 and 9 of the ESA. Section 9 of the ESA and its implementing regulations prohibit the "take" of "any endangered species of fish or wildlife," and provides separate protections for endangered plants. See 16 U.S.C. § 1538(a)(1); 50 C.F.R. § 17.31. Section 9, titled "Prohibited Acts," states,
(B) remove and reduce to possession any such species from areas under Federal jurisdiction; maliciously damage or destroy any such species on any such area; or remove, cut, dig up, or damage or destroy any such species on any other area in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law;
16 U.S.C. § 1538(a)(1)-(2) (emphasis added). Thus, Section 9(a)(1) prohibits the "take" of endangered fish or wildlife, while Section 9(a)(2) does not use the term "take," but contains a range of other protections for endangered plants. The ESA defines "take" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Id. § 1532(19). Pursuant to Section 4(d) of the ESA, FWS may by regulation extend the Section 9(a)(1) "take" prohibition to threatened fish or wildlife, and may extend the protections of Section 9(a)(2) to threatened plants. Id. § 1533(d).
Plaintiffs argue that an ITS is required for plants because Section 7(b)(4) ties the ITS requirement to the conclusion of a consultation under Section 7(a)(2), and Section 7(a)(2) provides that consultation is required for federal actions affecting "any endangered species or threatened species," regardless of whether the species is plant or wildlife. 16 U.S.C. § 1536(a)(2). Plaintiffs emphasize the fact that Section 7(b)(4) — the provision requiring the preparation of an ITS — also refers to "any endangered species or threatened species." Plaintiffs argue that "if an action triggers consultation on a listed plant under section
Plaintiffs also rely on Center for Biological Diversity v. Salazar, 695 F.3d 893 (9th Cir.2012). In that case, the FWS prepared an ITS for the threatened polar bear, and the plaintiffs challenged the ITS as inadequate because it did not specify a numerical limit for permissible take. The FWS argued, inter alia, that it was not even required to prepare an ITS because when the FWS listed the polar bear as threatened, the FWS also issued a Section 4(d) rule that applied most of the Section 9 prohibitions to the polar bear, but not the prohibition on take. The Section 4(d) rule stated that "[n]othing in this special rule affects the issuance or contents of the biological opinions for polar bears or the issuance of an incidental take statement, although incidental take resulting from activities that occur outside of the current range of the polar bear is not subject to the taking prohibition of the ESA." Id. at 911 (quoting 73 Fed. Reg. 76, 249, 76, 252 (Dec. 16, 2008)). The Ninth Circuit rejected the FWS's argument that an ITS was not required, holding that "exemption from Section 9 take liability is irrelevant to the Service's Section 7 obligations to prepare a BiOp and ITS.... The ESA requires an ITS for `the taking of an endangered species or a threatened species incidental to the agency action,' 16 U.S.C. § 1536(b)(4)(B) (emphasis added), not the prohibited taking." Id. at 910. The Ninth Circuit noted that "[t]he Association's argument fails to recognize that exemption from Section 9 take liability is not the sole purpose of the ITS. If the amount or extent of taking specified in the ITS is exceeded, reinitiation of formal consultation is required." Id. at 911 (internal quotations and citation omitted). Plaintiffs rely on this language to argue that FWS has an obligation to prepare an ITS for the PMV under Section 7 regardless of that fact that Section 9 take liability does not apply to listed plants.
Defendants assert — and plaintiffs do not deny — that no court has ever held that Section 7 requires an ITS for listed plants, and that the one court that has addressed this question held that an ITS is not required for listed plants. See California Native Plant Society v. Norton, No. 01CV1742 DMS (JMA), 2004 WL 1118537, at *8 (S.D.Cal. Feb. 10, 2004).
H.R.Rep. No. 97-567, at 26 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2826. Absent an actual or prospective taking under Section 9, there is no "situation" that requires a Section 7 safe harbor provision.
Id. at 1239-40.
Defendants also rely on Northern California River Watch v. Wilcox, 547 F.Supp.2d 1071 (N.D.Cal.2008). In that case, Judge Breyer noted that "[S]ection 10 — allowing a private party to apply for an incidental take permit — applies only to fish and wildlife — there is no section 10 incidental take permit provision for endangered plants." Id. at 1075.
Defendants also note that the FWS has always defined "incidental take" as "take of listed fish or wildlife species that results from, but is not the purpose of, carrying out an otherwise lawful activity." Endangered Species Consultation Handbook: Procedures for Conducting Consultation and Conference Activities Under Section 7 of the Endangered Species Act, at xv (1998) ("ESA Handbook") (emphasis added), available at http://www.fws.gov/ endangered/esa-library/. Defendants contend that the agency's interpretation is rational, consistent with the statute, and entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
The Chevron inquiry requires a two-step analysis. At step one, the Court asks "whether Congress has directly spoken to the precise question at issue." Id. "If the intent of Congress is clear, that is the end of the matter; [and we] ... must give effect to the unambiguously expressed intent of Congress." Id. at 842-43, 104 S.Ct. 2778. "[I]nquiry into congressional intent encompasses both statutory language and legislative history." Edwards v. McMahon, 834 F.2d 796, 799 (9th Cir. 1987) (citation omitted). "If, however, the
The Court concludes under the first step of the Chevron inquiry that the statutory language and the legislative history demonstrate that the Section 7 requirement to prepare an ITS does not apply to listed plants. Section 9(a)(1) prohibits the take of endangered "fish and wildlife," and not of plants, while Section 9(a)(2) provides a variety of protections to endangered plants and does not protect against incidental take. As defendants note, the Section 9(a)(2) prohibitions for plants require deliberate or malicious conduct, whereas "incidental" take can occur without such intent. An ITS "must specify whether any `incidental taking' of protected species will occur, specifically `any taking otherwise prohibited, if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.'" Ariz. Cattle Growers' Ass'n, 273 F.3d at 1239 (quoting 16 U.S.C. § 1536(b)(4) and 50 C.F.R. § 17.3) (emphasis added).
Plaintiffs emphasize the fact that the statutory definition of "take" does not distinguish between wildlife and plants. See 16 U.S.C. § 1532(19). However, as defendants note, the "take" definition was part of the ESA when it was originally enacted in 1973, prior to the 1982 amendments adding the incidental take provisions of Sections 7 and 10. See P.L. 93-205 § 3(14), 87 Stat. 884 (Dec. 28, 1973). Thus, "take" was defined in the original enactment of the ESA to explain the meaning of "take" in Section 9(a), which only applies to fish and wildlife.
Interpreting Section 7 as requiring an ITS for fish and wildlife but not plants is also consistent with the take provision in Section 10, which only applies to listed animals. It is a "fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." Davis v. Mich. Dep't
In addition, the legislative history of the 1982 amendments makes clear that Section 7's incidental take provisions do not apply to listed plants because plants are not subject to take under Section 9:
S. Rep. No. 97-418 (1982) (Docket No. 232-1 at 20-21).
Accordingly, the Court concludes that FWS was not required to prepare an ITS for the PMV, and GRANTS summary judgment in favor of defendants on this issue.
Plaintiffs bring a claim under the Endangered Species Act challenging FWS's failure to prepare a final recovery plan for the PMV. Section 4 of the ESA provides that "[t]he Secretary shall develop and implement plans (hereinafter in this subsection referred to as `recovery plans') for the conservation and survival of endangered species and threatened species listed pursuant to this section, unless he finds that such a plan will not promote the conservation of the species." 16 U.S.C. § 1533(f). "The recovery plan, once prepared, provides [a] `basic road map to recovery, i.e., the process that stops or reverses the decline of a species and neutralizes threats to its existence.'" Ctr. for Biological Diversity v. Kempthorne, 607 F.Supp.2d 1078, 1088 (D.Ariz. 2009) (quoting Defenders of Wildlife v. Babbitt, 130 F.Supp.2d 121, 131 (D.D.C. 2001)). "A recovery plan must contain three essential elements: (1) a description of site specific management actions that may be necessary to recover the species; (2) objective and measurable criteria which, when met, would result in a determination that the species be removed from the list; and (3) estimates of the time and cost required to carry out those measures needed to recover the species and to achieve intermediate steps towards that goal." Ctr. for Biological Diversity, 607 F.Supp.2d at 1087-88 (citing 16 U.S.C. § 1533(f)(1)(B)(i)-(iii)). While the ESA imposes specific deadlines for certain actions, see, e.g., 16 U.S.C. § 1533(b)(3), (5)(6), it prescribes no deadline for completing
As an initial matter, the federal defendants and defendant-intervenors argue that FWS does not have a duty to issue a recovery plan and thus that the Court cannot grant the relief that plaintiffs seek. Defendants argue that FWS does not have a duty to issue a recovery plan because Section 1533(f) states that the Secretary "shall develop and implement [recovery plans] ..., unless he finds that such a plan will not promote the conservation of the species." 16 U.S.C. § 1533(f) (emphasis added). Defendants argue that this language vests FWS with discretion to either prepare a recovery plan or determine that a recovery plan will not promote conservation of the species, and thus that this Court cannot require FWS to prepare a recovery plan.
As support, defendants cite cases interpreting the APA and holding that courts may not review an agency's failure to make a completely discretionary decision. See Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (claim under APA "can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take."); Drakes Bay Oyster Co. v. Salazar, 921 F.Supp.2d 972, 988 (N.D.Cal.2013) (holding there was no judicial review over agency's discretionary decision to deny permit), aff'd 2014 WL 114699 (9th Cir. Jan. 14, 2014). However, plaintiffs bring their claim directly under the ESA, not the APA. The ESA authorizes citizen suits to challenge "a failure of [FWS] to perform any act or duty under section 4 [of the ESA] which is not discretionary." 16 U.S.C. § 1540(g)(1)(C); Wash. Toxics Coalition v. EPA, 413 F.3d 1024, 1034 (9th Cir.2005) ("suits to compel agencies to comply with the substantive provisions of the ESA arise under the ESA citizen suit provision, and not the APA").
Defendants do not cite any cases interpreting Section 1533(f) as conferring discretionary authority on the FWS to issue a recovery plan in the absence of a determination that a recovery plan will not promote the conservation of the species.
Id. (internal citations omitted) (emphasis in original).
As with the provision at issue in Bennett, Section 1533(f) states that the Secretary "shall" develop a recovery plan, and the Court finds that the terms of this section are "those of obligation rather than discretion." Id. The Court finds that Section 1533(f) requires FWS to either issue a recovery plan or determine that a recovery plan will not promote the conservation of the species, and does not permit the FWS the discretion to do neither. See Brower v. Evans, 257 F.3d 1058, 1067 n. 10 (9th Cir.2001) ("`Shall' means shall."); see also United States v. Monsanto, 491 U.S. 600, 607, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989) (by using "shall" "Congress could not have chosen stronger words to express its intent that forfeiture be mandatory."). Defendants do not assert that FWS has determined that a recovery plan will not promote conservation of the PMV, and to the contrary, the evidence in the record shows that FWS has not made such a determination. Thus, the Court agrees with plaintiffs that, absent an express determination that a recovery plan will not promote conservation, FWS is required to issue a recovery plan for the PMV.
Because the ESA "contains no internal standard of review," the Ninth Circuit has held that the standards provided under Section 706 of the APA govern in ESA cases. W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 496 (9th Cir. 2011). Section 706 of the APA requires that a court "shall ... compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1); see also id. § 555(b) (agency must "conclude a matter presented to it ... within a reasonable time"). Pursuant to Section 706, "even though agency action may be subject to no explicit time limit, a court may compel an agency to act within a reasonable time." Houseton v. Nimmo, 670 F.2d 1375, 1377 (9th Cir.1982); Forest Guardians v. Babbitt, 174 F.3d 1178, 1186 (10th Cir.1998) (in ESA case, finding "if an agency has no concrete [statutory] deadline ... and instead is governed only by general timing provisions — such as the APA's general admonition
To determine whether delay is "unreasonable" under APA Section 706, courts apply the factors set forth by the Court of Appeals for the District of Columbia Circuit in Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C.Cir.1984) ("T.R.A.C."). See Independence Mining Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir.1997) (adopting T.R.A.C. factors); Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1177 n. 11 (9th Cir.2002) (noting T.R.A.C. factors apply "in the absence of a firm deadline"). Under these factors, the Court considers the following guidelines to determine whether an agency's delay is unreasonable:
Towns of Wellesley, Concord and Norwood, Mass. v. FERC, 829 F.2d 275, 277 (1st Cir.1987) (citing T.R.A.C., 750 F.2d at 80).
Plaintiffs contend that FWS's delay — which they measure from the date that the PMV was listed — has been unreasonable, and they seek an order requiring FWS to issue a recovery plan within two years. Plaintiffs cite a number of cases in which courts found that a delay of several years was unreasonable and warranted court intervention. See, e.g., Defenders of Wildlife v. Browner, 909 F.Supp. 1342 (D.Ariz. 1995); Hells Canyon Preserv. Council v. Richmond, 841 F.Supp. 1039 (D.Or.1993).
FWS argues that it has not unreasonably delayed in preparing a recovery plan for the PMV, and that no judicial intervention is required. FWS also asserts that the cases cited by plaintiffs are inapplicable because here FWS has shown that the additional time it requires to prepare a recovery plan is reasonable in light of the agency's increasingly limited resources and competing priorities. In the alternative, FWS asserts that if the Court finds that judicial intervention is necessary, the Court should adopt the July 31, 2019 date identified by FWS as the date by which a PMV recovery plan could be completed.
FWS has submitted the Declaration of Ren Lohoefener, Regional Director for FWS's Pacific Southwest Region (Region 8).
Mr. Lohoefener provides as an example of higher priority recovery work a settlement that FWS entered into in 2005 in Cal. State Grange v. Norton, No. 2:05-cv-00560, 2005 WL 1026835 (E.D.Cal. filed March 22, 2005). That settlement required FWS to complete statutorily-required five-year status reviews on 194 listed species, with Region 8 serving as the lead for all but two. Id. ¶ 9. Mr. Lohoefener states that "[d]uring the eight-year period covered by the agreement, much of Region 8's recovery efforts and funding were devoted to completing these status reviews, including one for the PMV (completed September 30, 2008)." Id. In September 2013, FWS completed the last status reviews required under the settlement agreement. Id.
Mr. Lohoefener states that as a result of the 2005 settlement and other priorities, Region 8 has only recently been able to increase its efforts on developing recovery plans. Id. ¶ 14. In May 2013, Region 8 revised its Recovery Plan Work Activity Guidance ("WAG"), identifying 29 high-priority species for recovery plan development during fiscal years 2013-2017. Id. ¶¶ 14-18 & Exs. A-B. Mr. Lohoefener states CFWO did not plan to develop a recovery plan for the PMV during this time period based on CFWO's determination that "recovery might be more effectively realized through implementation of BLM's ISDRA RAMP." Id. ¶ 16. Mr. Lohoefener states,
Id. ¶ 19.
Mr. Lohoefener also states that much of Region 8's recovery effort and funding have been devoted to important recovery work for the PMV, including responding to two delisting petitions, conducting two separate status reviews, conducting two field studies which resulted in a peer-reviewed publication and a published note, and developing a seed bank sampling protocol with BLM. Id. ¶¶ 10-11 (citing FW5927-6016). In addition, in 2009 FWS issued a "Spotlight Species Action Plan" for the PMV specifying actions to advance species recovery, id. ¶ 12 (citing FW527-32), and in the fall of 2012, CFWO staff worked with BLM to develop a monitoring protocol to assess the stability of PMV populations in the ISDRA. Id. (citing ISD40884-89). Field sampling to evaluate the protocol was conducted in February 2013. Id.
Mr. Lohoefener also states that, in light of this litigation, FWS anticipates it could "submit to the Federal Register a notice of availability of a final recovery plan by July 31, 2019, subject to workload constraints and available appropriations. The July 31, 2019 date is a reasonable projection based on our current workload that would result in a final recovery plan for Peirson's milk-vetch without compromising our ability to develop recovery plans for the higher priority species in our current 5-year [Regional Recovery Plan Work Activity Guidance (WAG)]." Id. ¶ 21.
Applying the T.R.A.C. factors, the Court concludes that it is appropriate to adopt the July 31, 2019 date identified by FWS as the deadline to complete a PMV recovery plan, unless FWS "finds that such a plan will not promote the conservation of the [PMV]." 16 U.S.C. § 1533(f)(1). The Court is very concerned about the FWS's failure to issue a recovery plan for the PMV. However, the delay does not involve human health and welfare, and in recent years the FWS has devoted resources to recovery work for the PMV, such as responding to two delisting petitions, preparing two status reviews, and preparing the seed bank sampling protocol. The Court also notes that the 2013 RAMP closes to OHV use all PMV critical habitat, which encompasses 85% of the known overall PMV population and areas "containing high-density core populations, a large extent of high-quality habitat, a large seed bank, and therefore, areas important for the recovery of the species." FW1735-36, FW1760, FW1766; ISD31621-22.
The Court is also mindful that although courts may compel an agency to "act within a reasonable time," Houseton v. Nimmo, 670 F.2d 1375, 1377 (9th Cir. 1982), courts are "ill-suited to review the order in which an agency conducts its business" and "hesitant to upset an agency's priorities by ordering it to expedite one specific action." Sierra Club v. Thomas, 828 F.2d 783, 797 (D.C.Cir.1987). The Court finds it significant there are 29 species identified for recovery plan development in the FY2013-2017 WAG, and the Court is reluctant to "reorder[] agency priorities. The agency is in a unique — and authoritative — position to view its projects as a whole, estimate the prospects for each, and allocate its resources in the optimal way. Such budget flexibility as Congress has allowed the agency is not for [courts] to hijack." In re Barr Labs., 930 F.2d 72, 75 (D.C.Cir.1991). If the Court ordered the FWS to complete the PMV recovery plan within two years, as plaintiffs
Accordingly, the Court GRANTS IN PART plaintiffs' motion for summary judgment on this issue and ORDERS FWS to complete a PMV recovery plan by July 31, 2019, unless FWS "finds that such a plan will not promote the conservation of the [PMV]." 16 U.S.C. § 1533(f)(1).
The National Environmental Policy Act ("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). Plaintiffs contend that BLM violated NEPA by failing adequately to address in the Final EIS ("FEIS") the impacts of the 2013 RAMP on the wilderness characteristics of a portion of the South Algodones Dunes known as "WCU 1," which would largely be opened up to OHV use under the 2013 RAMP.
In 1964 Congress passed the Wilderness Act with the purpose "to assure that an increasing population, accompanied by expanding settlement and growing mechanization, does not occupy and modify all areas within the United States and its possessions, leaving no lands designated for preservation and protection in their natural condition." 16 U.S.C. § 1131(a). The Wilderness Act defines "wilderness," "in contrast with those areas where man and his own works dominate the landscape," as:
16 U.S.C. § 1131(c).
The Wilderness Act did not directly address the BLM's management of its lands. The Federal Land Planning
Pursuant to the FLPMA, BLM established two Wilderness Study Areas ("WSAs") for the purpose of identifying and recommending areas for preservation as wilderness: (1) the North Algodones Dunes; and (2) the South Algodones Dunes. Congress designated the North Algodones Dunes, but not the South Algodones Dunes, as a wilderness area through the California Desert Protection Act of 1994. ISD3178.
"We review an Environmental Impact Statement under the `rule of reason' to determine whether it contains `a reasonably thorough discussion of the significant aspects of the probable environmental consequences.'" City of Carmel-By-The-Sea v. U.S. Dep't of Transp., 123 F.3d 1142, 1150 (9th Cir.1997) (quoting Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir.1992)). "We make `a pragmatic judgment whether the [Environmental Impact Statement's] form, content and preparation foster both informed decision-making and informed public participation.'" City of Carmel-By-The-Sea, 123 F.3d at 1150-51 (quoting California v. Block, 690 F.2d 753, 761 (9th Cir.1982)). "Once satisfied that a proposing agency has taken a `hard look' at a decision's environmental consequences, [our] review is at an end." Id. at 1151.
Plaintiffs assert that the only analysis in the FEIS about wilderness characteristics consists of a "few generic statements on the relative impacts of the different alternatives." Docket No. 231 at 15:8-9. Plaintiffs identify the following two excerpts as "the entire extent" of BLM's analysis of projected effects on WCU 1:
ISD3363.
ISD3367. Plaintiffs argue that BLM's "purported `hard look' boils down to the completely self-evident and uninformative statement that the alternative with the fewest acres of WCU 1 closed to OHVs will `result in greater adverse impacts.'" Docket No. 231 at 15:23-25.
Defendants respond that the FEIS contains a "reasonably thorough discussion" of the wilderness characteristics of WCU 1 and the potential impacts to that area, which is all that NEPA requires. See City of Carmel-By-The-Sea, 123 F.3d at 1150. The Court agrees. In the "Affected Environment" section, the FEIS includes a discussion of "Lands with Wilderness Characteristics." ISD3177-3179. The FEIS states that BLM evaluated the wilderness characteristics of "current lands and lands acquired outside of, or adjacent to designated wilderness, since passage of the CDPA in 1994." ISD3178. This included WCU 1. The FEIS describes WCU 1 as follows:
ISD3179.
The FEIS also explains that impacts on wilderness characteristics "are those actions that reduce or enhance the wilderness characteristics of naturalness and opportunities for solitude or primitive forms of recreation." ISD3361. The FEIS states that OHV recreation has the potential to disturb the "naturalness and solitude" of wilderness: "These characteristics and values could be impacted by the use of motor vehicles and installation of structures causing surface disturbance and evidence of the human-caused modifications of the area." Id. The FEIS identifies
In addition, the FEIS discusses how the different alternatives will affect ACECs and special designation areas such as WCU 1:
Id. at ISD3363. With regard to WCU 1, the FEIS includes the following information: (1) under Alternatives 4, 5, 6, and 7, 42,083 acres of WCU 1 would be open to geothermal leasing, but there would be no geothermal leasing in WCU 1 under Alternatives 2, 3, and 8 (the proposed RAMP); and (2) under Alternative 7, 42,083 acres of WCU 1 would be available for solar and wind energy development, but would be closed to such development under Alternatives 1 through 6 and Alternative 8. Id. at ISD3367. Plaintiffs assert that it is self-evident and therefore meaningless to conclude that reopening the central dunes to OHV use will diminish wilderness characteristics in WCU 1. However, it is not clear what further analysis plaintiffs contend should have been performed as the preferred alternative, Alternative 8, does not propose to install any structures or visitor amenities in the central dunes of WCU 1, and the only non-wilderness components that the RAMP introduces into WCU 1 are vehicles and their occupants.
The cases cited by plaintiffs are distinguishable. In ONDA, 625 F.3d 1092 (9th Cir.2010), the BLM prepared an EIS that only evaluated wilderness characteristics in areas designated as wilderness study areas, and the BLM contended that it had no duty to inventory or analyze wilderness characteristics in non-wilderness areas. Id. at 1102-15. The Ninth Circuit disagreed, and invalidated the EIS for failing to evaluate wilderness characteristics in non-WSA areas. Id. at 1121. Klamath-Siskiyou Wildlands Center v. Bureau of Land Management, 387 F.3d 989 (9th Cir. 2004), did not involve an assessment of wilderness characteristics at all. In Klamath-Siskiyou, the Ninth Circuit invalidated environmental assessments where, inter alia, the discussion of cumulative impacts consisted of a table with a list of environmental concerns, such as air quality, and "even though all of the boxes are checked `No' to indicate that the critical elements in question will not be affected, the report actually states that fully half of the elements either would be or could be in fact `impacted,' without giving any details or explanation." Id. at 995. Here, in contrast, the BLM assessed the wilderness characteristics of WCU 1 and described
Accordingly, the Court GRANTS summary judgment in favor of defendants on this issue.
The federal Clean Air Act ("CAA") establishes a comprehensive program for controlling and improving the nation's air quality through shared federal and state responsibility. The CAA authorizes the Environmental Protection Agency ("EPA") to establish national ambient air quality standards ("NAAQSs") for pollutants deemed by EPA to be "criteria" pollutants, including volatile organic compounds ("VOCs") and nitrogen oxides ("NOx") — both of which are considered precursors to ozone
The Imperial County Air Pollution Control District ("ICAPCD"), which includes the ISDRA, is designated as a serious non-attainment area for PM-10 and a moderate non-attainment area for ozone. ISD3283. The ICAPCD has promulgated regulations for the control of PM-10, which have been approved by EPA. 78 Fed. Reg. 23,677 (Apr. 22, 2013). Pursuant to an ICAPCD rule governing "fugitive dust," BLM was required to submit a dust control plan for OHV use in the Dunes. ISD63050. The ICAPCD approved the dust control plan in July 2013. ISD63027.
Section 110(a) of the Clean Air Act, 42 U.S.C. § 7410(a), sets forth the process by which the states may develop their own regulatory programs, called "State Implementation Plans" ("SIPs"), that satisfy the minimum requirements of the Clean Air Act. See generally 42 U.S.C. § 7410(a). A SIP must specify emission limitations and other measures necessary to maintain the NAAQS for each pollutant. 42 U.S.C. § 7410(a)(2)(A)-(M). Section 176(c)(1) of the CAA provides that no federal agency shall "engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform to [a SIP]." 42 U.S.C. § 7506(c)(1). This is referred to as the "conformity" requirement. Pursuant to EPA regulations regarding conformity, BLM was required to assess the RAMP's "conformity" with California's State Implementation Plan (SIP) applicable to Imperial County. 40 C.F.R. Part 93, Subpart B; see also ISD3282-3283. BLM is not required to conduct a conformity review, however, if the data establish that the RAMP will generate PM-10 and ozone in quantities below the Clean Air Act's "de minimis" thresholds. See 40 C.F.R. § 93.153(b). For Imperial County, the de minimis thresholds for PM-10 and ozone are 70 tons per year and 100 tons per year, respectively, when measured as an increase over baseline conditions. BLM 3283 [Table 4-4]. In the FEIS, BLM determined that adopting the preferred alternative would not result in a greater than de minimis increase in emissions of PM10 and ozone compared with existing conditions. ISD3283-85. As a result, the BLM was not required to make a "conformity
Plaintiffs challenge BLM's air quality analysis as flawed and in violation of the requirements of the Clean Air Act, the Federal Land Policy Management Act and NEPA. Plaintiffs note that in the Draft EIS ("DEIS"), BLM estimated that the increase in VOCs and PM-10 emissions from adopting the preferred alternative in the 2013 RAMP would greatly exceed the de minimis thresholds of the conformity regulations, and BLM acknowledged that if it adopted the proposed RAMP it would need to carry out a full conformity determination for ozone and PM-10. ISD30858-30859. Plaintiffs contend that, "[g]iven the very high emissions increases estimated in the DEIS, particularly of PM-10, it is highly unlikely, if not outright impossible, that BLM could have ultimately made a finding that its proposed RAMP conformed to ICAPCD's SIPs and the relevant regulations." Docket No. 231 at 19:4-6.
Between the DEIS and FEIS, BLM recalculated the emissions by changing several assumptions used in the DEIS, which significantly reduced both the total estimated emissions of PM-10 and VOCs, as well as in the difference in emissions from current conditions that would result from adoption of the proposed alternatives. This analysis is described in Appendix Q to the FEIS and supporting emissions data spreadsheet. ISD3790-98, ISD63133-35.
The main factor contributing to the change in projected emissions between the DEIS and FEIS (an 80% reduction) is the use of actual soil data in the FEIS rather than the standard assumptions that were used in the DEIS. ISD17452. The FEIS states, "[i]n reviewing the results and techniques of the previous analysis [the DEIS], BLM determined the standard assumptions that were used greatly overestimated emissions. Since that time, BLM has been able to collect site samples and develop a more refined analysis." ISD3795. BLM staff collected soil samples from the different recreation areas at the Dunes and determined the silt content, which is the component of the soil that contributes to PM-10 emissions. Id. at ISD3796-98. Using the actual soil data in the FEIS, BLM found that adoption of the preferred alternative would result in a slight decrease in PM-10 emissions from the baseline (Alternative 2), id. at ISD3284, as a result of shifting OHV activities to areas of the Dunes with lower silt content, ISD3798, and implementing mitigation measures included in the preferred alternative, ISD3289.
Plaintiffs contend that the BLM used improper soil sampling methods because BLM did not comply with ICAPCD Rule 800. Plaintiffs argue that "the required sampling methods are in the county's CAA PM-10 implementation plan in a rule denominated as `General Requirements for the Control of Fine Particulate Matter (PM-10),' and do not in any way appear to be to be limited to dust control plans." Docket No. 236 at 20:1-3. Plaintiffs argue that Rule 800 G.1.e, "Determination of Silt Content for Unpaved Roads and Unpaved Vehicle/Equipment Traffic Areas," requires that silt content for unpaved roads and unpaved traffic areas be determined using a specific defined method or other equivalent method approved by EPA, and the state and local agency. Plaintiffs assert that "BLM did not use the Rule 800 method, has not claimed it has used an approved equivalent method, and remains unable to detail what method it actually employed. BLM's reliance upon the soil analysis is arbitrary." Id. at 20:7-9.
Defendants respond that the test method specified by ICAPCD Rule 800.G.1.e (the method identified in ICAPCD Rule
Another major factor contributing to the change in projected emissions between the DEIS and FEIS is BLM's determination that increasing the number of acres available to OHVs would not increase the number of visitors to the Dunes. In the DEIS, BLM assumed that the number of visitors was proportional to the available acreage, and thus that opening up more acreage to OHVs would cause a corresponding increase in vehicle-related emissions. ISD30936-30938, ISD30856-30859. Plaintiffs contend that the change in assumptions about number of visitors is unsupported and inconsistent with other parts of the FEIS, such as the sections describing social and economic impacts, which assumed that opening up more acres to OHVs would increase the number of OHV visitors.
The Court concludes that the assumption about number of visitors in the FEIS is supported by the record. As an initial matter, the Court notes that plaintiffs have not identified any data in the record showing that OHV use is proportional to available area, or that opening up the closed areas will lead to an increase in OHV visitors.
Further, as defendants note, between the DEIS and FEIS, BLM analyzed visitor data, and that data showed that while the number of visitors fluctuated from year to year, those fluctuations were not associated with area closures. ISD36246-36249.
Finally, plaintiffs challenge BLM's assumptions for number of OHVs, visitor days, average speed, and time spent riding OHVs. However, as defendants note, these assumptions apply equally to the baseline condition and the preferred alternative, and thus have no effect on BLM's conclusion that the RAMP will not cause more than a de minimis increase in emissions
Accordingly, the Court concludes that BLM complied with the CAA, FLPMA and NEPA, and GRANTS summary judgment in favor of defendants on these claims.
For the foregoing reasons and for good cause shown, the Court hereby GRANTS in part and DENIES in part plaintiffs' motion for summary judgment (Docket No. 231) and GRANTS in part and DENIES in part defendants' motions for summary judgment (Docket Nos. 232 & 234).
The Court finds that these cases are factually distinguishable in that they involve the implementation of recovery plans, and not the failure to prepare a recovery plan. To the extent that either case holds more broadly that the Secretary has the discretion not to prepare a recovery plan without also finding that a recovery plan will not promote the conservation of a species, this Court disagrees with that interpretation of Section 1533(f).
