Montana Wilderness Association v. Connell et al

Filing 186

MEMORANDUM AND ORDER. 1) BLM's Motion for Summary Judgment is GRANTED ((142) in CV-09-95, (134) in CV-09-96, and (106) in CV-10-04)); 2) Missouri River Stewards' Motion for Summary Judgment is GRANTED ((135) in CV-09-95, (127) in CV-09-96, and (99) in CV-10-04); 3) Aviation Group's Motion for Summary Judgment is GRANTED ((138) in CV-09-95, (130) in CV-09-96, and (102) in CV-10-04)); and, 4) Plaintiffs' Motions for Summary Judgment are DENIED ((89), (93), and (94) in CV-09-95, (88) and (89) in CV-09-96), and (53), (57), and (58) in CV-10-04)). Signed by Judge Sam E Haddon on 8/9/2011. Associated Cases: 4:09-cv-00095-SEH, 4:09-cv-00096-SEH, 4:10-cv-00004-SEH (SLR, )

FiLED

FOR THE DISTRICT OF MONTANA Gf
GREAT FALLS DIVISION
IN RE MONTANA WILDERNESS
ASSOCIATION

This Document Relates to All Actions

No. CV-09-95-GF-SEH

MEMORANDUM
AND ORDER

PLEADING BACKGROUND
Ibis case arises from the Bureau of Land Management's approval of the
Resource Management Plan ("Plan") for the Upper Missouri River Breaks
National Monument ("Monument") and from renewal of the Woodhawk Allotment
Grazing Permit. The Wilderness Society, Friends of the Missouri River Breaks
Monument, National Trust for Historic Preservation, Oil and Gas Accountability
Project, Montana Wilderness Association, Western Watersheds Project, Inc.,
Glenn Monahan, and Nancy Schultz (collectively "Plaintiffs") filed complaints in
separate cases challenging the decisions. l Defendants are the U.S. Department of

1 The

cases in the Great Falls Division were designated as follows: Mont. Wilderness
Assn. v. Terland, No. CV-09-95-GF-SEH (D. Mont. filed June 18, 2009); The Wilderness
Society v. USBLM, No. CV -09-96-GF-SEH (D. Mont. filed July 15, 2009); and Western
Watersheds Project, Inc. v. Abbey, No. CV-I0-04-GF-SEH (D. Mont. filed Nov. 20, 2009).

Interior, Bureau of Land Management, and various employees in their official
capacities (collectively "BLM"). Plaintiffs allege violations of the Administrative
Procedure Act ("AP A"), 5 U.S.c. §§ 701-06, National Environmental Policy Act
CNEPA"), 42 U.S.c. §§ 4321-61, Wild and Scenic Rivers Act ("WSRA"), 16
U.S.C. §§ 1271-81, Federal Land and Policy Management Act of 1976
("FLPMA"), 43 U.S.C. §§ 1701-82, National Historic Preservation Act ("NHPA"),
16 U.S.C. §§ 470-470x-6, and the Proclamation designating the Monument, 66
Fed. Reg. 7,359 (Jan. 17,2001). The cases were consolidated. Recreational
Aviation Foundation and Montana Pilots Association (collectively "Aviation
Group") and Missouri River Stewards, Fergus County, Phillips County, Chouteau
County, and Blaine County (collectively "Missouri River Stewards") appeared as
intervenors.
The Court granted BLM's motion to dismiss Count VII in Cause No. CV
1O-04-GF-SEH, which alleged that BLM failed to complete supplemental analysis
of the Plan and Woodhawk Allotment Grazing Permit Environmental Assessment.
The Court also struck, upon motion ofBLM, extra-record evidence contained in
summary judgment filings of Montana Wilderness Association and Western
Watersheds Project. Refiling of the briefs in support of summary judgment
without the stricken material was ordered and was carried out. All parties
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ultimately filed motions for summary judgment. The issues have been fully
briefed and a hearing conducted. All motions are ripe for ruling. The Court has
jurisdiction under 28 U.S.C. § 1331.
FACTUAL BACKGROUND2
On January 17, 2001, President Clinton issued a Proclamation under the

Antiquities Act of 1906, establishing the Monument and designating BLM as
managing agency. The Monument consists of some 377 ,346 acres of BLM land in
north central Montana. It spans four counties-Blaine, Chouteau, Fergus, and
Phillips. A checkerboarding of other land ownerships, including approximately
80,000 acres of private land and 39,000 acres of state land, is intermingled with
the federal lands within the Monument. BLM has no authority over the private or
state lands and minerals.
On April 24, 2002, BLM announced that it would develop a Plan for the

Monument. A Draft Environmental Impact Statement ("Draft") was issued in
September 2005, roughly three and one-half years later. It then issued a proposed
Plan and Final Environmental Impact Statement in January 2008. The proposed
Plan and Final Environmental Impact Statement contained six alternatives.

2 The factual summary is drawn from the administrative record. See. e.g., Fla. Power &
Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985).

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Alternative F was designated as the preferred alternative and was described as one
that balanced objectives of the Monument, best met the diverse interests of all
involved stakeholders, and provided the most workable framework for future
management. 3 BLM issued its Record of Decision and approved Plan in
December 2008. The approved Plan is virtually identical to Alternative F.
Numberous management decisions were made as a result of adoption of the
Plan. Some 146 miles of the Upper Missouri National Wild and Scenic River was
closed to jet ski and float plane use. Four of ten backcountry airstrips were closed.
Previously allowed landings on roadways were prohibited. New, specific
conditions to protect Monument objects were placed on drilling natural gas wells
on existing leases. Range conditions for livestock grazing permits or leases were
required to exceed the Standards for Rangeland Health and Guidelines for
Livestock Grazing Management. Of the 605 miles of roads located within the
Monument, the Plan closed 201 miles (approximately 33%) year-round. Another
120 miles (approximately 20%) were seasonally closed. Each and all the decisions
were challenged by Plaintiffs.

3 Alternative F, inter alia, placed more restrictions on motorized use than every other
alternative except Alternative E, closed more roads than Alternatives A, 8, and C, closed the
same or more backcountry airstrips than every other alternative except Alternative E, and
imposed more restrictions on oil and gas operations than Alternatives A, B, and C.

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ISSUES

The issues before the Court may be summarized as follows:

1.

Did BLM violate the Proclamation or FLPMA by failing to:
A.
B.

Protect Monument objects?

C.

Determine the validity of oil and gas leases?

D.

Prohibit off-road vehicle use?

E.
2.

Apply the appropriate standard?

Prohibit impairment to wilderness study areas?

Did BLM violate the WSRA by failing to:
A.
B.

3.

Provide for outstandingly remarkable values?
Address user capacities in the Plan?

Did BLM violate NEPA by failing to:
A.

Consider a reasonable range of alternatives?

B.

Take a "hard look" at the impacts of its decisions?

C.

Prepare an EIS for renewal of the Woodhawk Allotment
Grazing Permit?

4.

Did BLM violate NHPA by failing to:

A.

Consult with the State Historic Preservation Officer?

B.

Comply with inventory requirements?

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STANDARD OF REVIEW

APA Standard

The standards for administrative agency action review are well-settled. A
court shall "hold unlawful and set aside agency action, findings, and conclusions
found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law." 5 U.S.C. § 706(2). Review of agency decisions is narrow.
Earth Is. Inst. v. USFS, 442 F.3d 1147, 1156 (9th Cir. 2006), overruled on other
grounds, Winter v. Nat. Resources Def. Council. Inc., 555 U.S. 7,21-22 (2008).
Courts are ill-equipped to substitute their judgment for that of agencies. Citizens
to Preserve Overton Park v. Volpe, 401 U.S. 402,416 (1971), overruled on other
grounds. Califano v. Sanders, 430 U.S. 99, 105 (1977). A decision is arbitrary and
capricious if the agency has made a clear error of judgment, that is if it relied on
factors not intended for consideration, failed to consider important aspects of the
problem, offered explanations counter to the evidence, or offered explanations so
implausible that they could not derive from expertise. Motor Veh. Mfrs. Assn.,
Inc. v. St. Farm Mut. Automobile Ins. Co., 463 U.S. 29,43 (1983).
Summary Judgment Standard

Summary judgment is appropriate if there are no genuine disputes of
material fact and the moving party is entitled to judgment as a mater oflaw. Fed.
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R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Final

agency actions are particularly susceptible to summary judgment because the
issues for resolution are those oflaw. See Occidental Engr. Co. v. INS, 753 F.2d
766, 770 (9th Cir. 1985).
DISCUSSION

Proclamation and FLPMA

The Monument Proclamation directed BLM to reserve all lands owned or
controlled by the United States for protection of Monument objects. 66 Fed. Reg.
7359,7361 (Jan. 17,2001). BLM operations are also governed by FLPMA.
Columbia Basin Land Protec. Assn. v. Schlesinger, 643 F.2d 585, 607 (9th Cir.
1981) (stating FLPMA is BLM's organic act). Plaintiffs argue that BLM
subordinated directives of protection to multiple use principles. 4 The claim lacks
merit.
The Proclamation required BLM to refer to "applicable legal authorities" to
implement intent behind designation of the Monument. 66 Fed. Reg. at 7361;
also id. ("Laws, regulations, and policies followed by the [BLM] in issuing and
administering grazing pennits or leases on lands under its jurisdiction shall

4 The Court is asked to take judicial notice of a proclamation and resource management
plan for an entirely different area. No demonstration has been made that these records are part of
the record on review or were rclied upon by BLM. Judicial notice is declined. See. e.g., S.W.
Ctr. for Biological Diversity v. USFS, 100 F.3d 1443, 1450 (9th Cir. 1996).

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continue to apply with regard to the lands in the [M]onument."). One such
applicable authority was the concept ofmultiple use, which declared that its
principles govern except when designated otherwise. 43 U.S.C. § 1732(a).
BLM interpreted how to best integrate multiple use with the Proclamation
as follows:
The BLM's vision is to manage the Monument in a manner that
maintains and protects its biological, geological, visual and historic
objects and preserves its remote and scenic character. The RMP will
incorporate the Proclamation, multiple use and existing laws, while
recognizing valid existing rights and authorizations, and providing
diverse recreational opportunities.
AR 44 (emphasis added); see also AR 64 ("Guidelines for Livestock Grazing
Management practices will be followed to protect the objects of the Monument
and rangeland resources and, where necessary, to mitigate conflicts with other
Monument uses and values."); AR 1011 (stating new management is needed
because management prior to designation may not sufficiently protect Monument
objects).
BLM did not denigrate the Proclamation by choosing to also abide by
multiple use principles. Rather, it instead sought to reconcile the two authorities.
Compare 43 U.S.c. § 1732(a) with 66 Fed. Reg. at 7361. 5 The interpretation that

Western Watersheds Project presents additional arguments. It argues that BLM was
required to manage under the standard of protecting, restoring, and preserving objects within the
Monument. It also argues that BLM must manage the Monument in order to achieve potential
natural community. Nowhere are these requirements mandated by enforceable authority, BLM
5

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providing for multiple use was required so long as Monument objects were
protected was reasonable. Cf. Udall v. Tallman, 380 U.S. 1,16·18 (1965).6

Protection ofMonument Objects
Plaintiffs argue BLM has failed to protect objects of the Monument. As the
examples which follow demonstrate, the failure-to- protect-objects' argument
fails.
The Proclamation states:
The Bullw[hJacker area of the [M]onument contains some of the
wildest country on all the Great Plains, as well as important wildlife
habitat. During the stress-inducing winter months, mule deer and elk
move up to the area from the river, and antelope and sage grouse
move down to the area from the benchlands. The heads of the
coulees and breaks also contain archeological and historical sites,
from teepee rings and remnants of historic trails to abandoned
homesteads and lookout sites used by Meriwether Lewis.
66 Fed. Reg. at 7360. BLM addressed protection of objects within the
Bullwhacker area by reducing roads, by committing to monitoring aircraft ifuse
should increase, and by restricting motorized use on the Missouri River. See also
AR 26 (The Plan provides for "diverse visitor use in a manner consistent with
protecting Monument resources and values."); cf. Hells Canyon Alliance v. USFS,

interpretation, or legal argument. More importantly, the Plan, indeed, protects, restores, and
preserves the objects of the Monument. These arguments are therefore rejected.
To the extent suggested that BLM predetermined its decision to rely upon multiple use,
Forest Guardians v. USFWS. 611 F.3d 692,
a plaintiff must meet a high standard ofproof.
713-14 (10th Cir. 2010). No such burden has been carried.
6

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227 F.3d 1170, 1178 (9th Cir. 2000) (deference given to agency's determination of
which uses are inconsistent with protection). Moreover, the interpretation that the
Bullwhacker area itself is not a Monument object is supported by the Listing of
Significant Objects that accompanied the Monument. AR 37203-21 (not listing
the Bullwhacker area). The agency's interpretation is reasonable. Ci Udall, 380
U.S. at 16-18. Protection of objects within and around the Bullwhacker has been
accomplished. Nothing more is required.
BLM likewise protected sage grouse, riparian and upland habitats, and
cottonwood galleries. See AR 51-53, 60-61, 1383,44839,44852-53,44859-60.
To the extent Plaintiffs argue that decisions in the Plan and Woodhawk Allotment
Grazing Permit violated the "non-degradation" standard in FLPMA, no such
requirement exists. FLPMA instead requires that "[i]n managing the public lands
the Secretary shall, by regulation or otherwise, take any action necessary to
prevent unnecessary or undue degradation of the lands." 43 U.S.C. 1732(b)
(emphasis added). Not only was this claim misstated and waived for failure to
raise it in opening briefing, no such unnecessary or undue degradation has been
demonstrated. Even if such degradation could occur, BLM will monitor the
potential impacts under adaptive management to ensure that no such degradation
arises.

~

AR 59-60; Gardner v. USBLM, 638 F.3d 1217, 1222 (9th Cir. 2011).

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Oil and Gas Leases
The Proclamation provides:
The establishment of this [M]onument is subject to valid existing
rights. The Secretary of the Interior shall manage development on
existing oil and gas leases within the [M]onument, subject to valid
existing rights, so as not to create any new impacts that would
interfere with the proper care and management of the objects
protected by this [P]roclamation.
66 Fed. Reg. at 7361. Plaintiffs argue that BLM should have verified the validity
of oil and gas leases rather than deem them valid by virtue of the Proclamation.
Such verification of validity was not required.
BLM addressed the leases. AR 29249 ("In February 2002, all the leases
within the Monument were reviewed and were determined that they remain in
good standing."). Even were this not the case, nothing in the Proclamation or
other legal authority required the agency to determine validity of the leases. At
most, the Proclamation required that such rights be managed to prevent new,
adverse impacts on Monument objects. 66 Fed. Reg. at 7361. Although it is
argued BLM deemed all leases to be valid, the Record of Decision did not
formally determine the validity of such leases. See AR 21 (not listing validity
determination of oil and gas leases as an implementation-level decision). At best,
a challenge has been levied against a non-existent validity determination. See 5
U.S.C. § 704 (requiring "final agency action" for review); see also Norton v. S.

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Utah Wilderness Alliance, 542 U.S. 55, 63-64 (2004). BLM action, or lack
thereof, with respect to oil and gas leases was not arbitrary and capricious. 7
Off-Road Vehicle Use

The Proclamation states, "[f]or the purpose of protecting the objects
identified above, the Secretary shall prohibit all motorized and mechanized vehicle
use off road, except for emergency or authorized administrative purposes." 66
Fed. Reg. at 7361. No definition for "road" is provided. BLM therefore defined
road as follows: "a linear route segment that can be created by the passage of
vehicles (two-track); constructed; improved; or maintained for motorized travel."
AR 93. The fact that unmaintained two-tracks are included in the definition is at
the heart of the dispute.
BLM used definitions of road similar to the one currently under challenge
before the definition utilized in the Monument was selected. See, e.g., AR 15,
32070,33282. More restrictive definitions of road cited by Plaintiffs are, in fact,
applicable to regulatory schemes for wilderness. See, e.g., 43 C.F.R. § 19.2(e).
There is no suggestion, however, that the President intended BLM to define a road
based upon definitions outlined by Plaintiffs. BLM was free to choose the

Plaintiffs imply that BLM has also violated NEPA by not determining the validity of oil
and gas leases in the Monument. To the extent asserted, this claim is rejected for failure to
develop sufficient argument. See Christian Legal Socy. Chapter ofU. of Cal. v. Wu, 626 F.3d
483,488 (9th CiT. 2010).
7

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definition as it deemed most appropriate. No sho'Wing has been made that the
chosen definition is unreasonable, rendering it arbitrary and capricious. s Cf.
Kester v. Campbell, 652 F.2d 13,15-16 (9th Cir. 1981) (citing cases). No further
explanation was required than that provided by the agency. See Alaska Dept. of
Envtl. Conserv. v. EPA, 540 U.S. 461, 496-97 (2004).9
The assertion is made that BLM violated the Proclamation's prohibition on
off-road travel by allowing a vehicle to pull off the road up to fifty feet on each
side. The argument fails.
The Plan allows vehicles to pass each other by providing for a fifty-foot
buffer on each side of a road. In order for two vehicles to pass on narrow roads,
one, and possibly even both, must drive off the road. The Proclamation has
allowed for vehicle passage, inclusive of activities consistent with such passage
and parking, as an administrative purpose to provide for safety. See AR 98

8 It is plausible that the same piece of real estate within a wilderness study area could be
deemed a "road" when referring to the Proclamation and "not a road," i.e. a "vehicle way," when
referring to FLPMA. Compare AR 93 with H.R. Rpt. 94-1163 § 311 (May 15, 1975). This
distinction has likewise not been demonstrated to be unreasonable.
9 Plaintiffs additionally cite to a BLM official's statement that the Monument planning
tearn "made the decision at the outset ofthis planning proeess ... to consider the two tracks or
routes created by passage of vehicles as resource roads for the [M]onument trans plan." AR
16592. Although this statement may have been imprudent, it at worst shows BLM identified a
preferred course of action. Cf. Natl. Audubon Socy. v. Dgpt. ofNavv, 422 F.3d 174, 199 (4th
Cir. 2005) (instructing that courts will not determine "alleged subjective intent of agency
personnel divined through selective quotations from email trails"). No predetermination has
been demonstrated.

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("Outside of the WSAs, motorized or mechanized vehicles may park adjacent to a
road to provide a reasonable safe distance for the public to pass."); AR 222
(clarifying that "the monitoring and management ofroad safety within the
Monument is an administrative purpose"). This interpretation is reasonable, see
Kester, 652 F.2d at 15-16, and does not violate the Proclamation against "off road"
travel, "except for emergency or authorized administrative purposes." 66 Fed.
Reg. at 7361.
Non-Impairment Standard

Under the terms of the FLPMA, Congress mandated that the Secretary
"review those roadless areas of five thousand acres or more and roadless islands of
the public lands ...." 43 U.S.C. § 1782(a). Congress could then designate the
land as wilderness or not. During the interim, "the Secretary shall continue to
manage such lands ... in a manner so as not to impair the suitability of such areas
for preservation as wilderness ...." Id. at § 1782( c) (emphasis added).
The legislative history explains that the term road "refers to the absence of
roads which have been improved and maintained by mechanical means to insure
relatively regular and continuous use." H.R. Rpt. 94-1163 at § 311 (emphasis
added). By this definition, a "vehicle way," meaning "[a] way maintained solely
by the passage of vehicles," does not qualifY as a road. Id.
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Plaintiffs argue that BLM violated the above non-impainnent standard by
roading previously unroaded wilderness study areas. This assertion
mischaracterizes the thrust ofBLM's decision. First, motorized travel in
wilderness study areas has always been allowed. See AR 37294. Second, BLM
interpreted the tenn "roads" under the Proclamation to include ''vehicle ways." It
does not follow, however, that the wilderness study areas have become "roaded"
under different statutory schemes, namely FLPMA and the non-impainnent
mandate. When referring to FLPMA and the non-impainnent mandate, "roads," as
that tenn is understood to mean in the Proclamation, will remain as unmaintained
"vehicle ways." Congress remains entitled to designate these areas as wilderness
ifit so chooses. Further, BLM has repeatedly stated that it will refer to its Interim
Management Policy to ensure that no wilderness study areas in the Monument are
impaired. See. e.g., AR 99 ("All WSAs will be managed according to the Interim
Management Plan ... and Guidelines for Lands Under Wilderness Review ...
until such time as Congress acts upon the recommendations."); AR 100
("[P]rimitive vehicle routes (,ways') ... may be used and maintained as before, as
long as this does not cause new impacts that will impair the area's wilderness
suitability."). Plaintiffs' claims that BLM has violated the non-impainnent
standard are therefore unfounded.
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WILD AND SCENIC RIVERS ACT
Congress passed the WSRA to protect outstandingly remarkable values of
selected rivers for the enjoyment of current and future generations. 16 U.S.C. §§
1271, 1281(a). The Upper Missouri National Wild and Scenic River, 149 miles of
which flows within the Monument, has been designated as such an area. 16 U.S.C.

§ 1274(14). The designating Act mandated BLM to manage the river under the
WSRA, Taylor Grazing Act, and multiple use and sustained yield. Pub. L. No. 94­
486 at § 203(a) (Oct. 12, 1976). To carry out the mandate, BLM classified the
river into three wild, two scenic, and two recreational segments.

~

16 U.S.C. §

1273(b) (discussing distinctions between wild, scenic, and recreational).

Protection and Enhancement ofthe Outstandingly Remarkable Values
All parties agree that solitude is an outstandingly remarkable value. to The
dispute arises because Plaintiffs claim BLM failed to determine whether motorized
use in the wild segments of the river are consistent with the WSRA's directive to
"protect and enhance" special values, namely solitude.

10 Outstandingly remarkable values are those values justifYing initial designation of the
river under the WSRA and provide a benchmark for evaluating proposed projects that could
impact the designated river. Friends of Yosemite Valley v. Kempthome, 520 F.3d 1024, 1027
(9th Cir. 2008) (citing 16 U.S.C. § 1271).

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Recreation is likewise an outstandingly remarkable value. In 1975, the
Bureau of Outdoor Recreation recommended designation of the river based, in
part, on the available recreational opportunities. A Senate Report issued in
connection with the WSRA also acknowledged the importance of recreation, even
stating that all uses except impoundment would continue "without significant
interference." Sen. Rpt. 94-502 at 5-6, 9 (Dec. 1, 1975). BLM has consistently
interpreted recreation to include motorized recreation. See, e.g., AR 35740
(recognizing in 1978 that "[b]oth motorized and non-motorized watercraft will be
permitted in all river segments"); AR 30314 (recognizing in 1993 that "[c]hances
for recreational activities will be available to ... motorized watercraft users"); AR
2234 (permitting motorboat use existing at the time of designation).
BLM's decision on how best to balance the values of solitude and recreation
is entitled to deference. See River Runners for Wilderness v. Martin, 593 F.3d
1064, 1080 (9th Cir. 2010). The agency attempted to provide diverse recreational
opportunities while at the same time preserving other outstandingly remarkable
values of the river. AR 1423. It arrived at its decision by recognizing that "beauty
and the solitude along the [river] are highly important to many visitors" and
acknowledged that "the sight, sound and smell of motorized craft ... may detract
from [aJ primitive experience ...." AR 1240, 1423; see also AR 1415-22, 1424,
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1428, 1430-33. Motorized opportunities allowed prior to designation of the
Monument were discontinued near the river, including seasonal restrictions on
roads, closure of 34 miles of roads, and implementation of watercraft and float
plane restrictions. AR 79-83, 2072.
The remaining complaints directed to the existence of roads, grazing, and
airstrips are without merit. Such uses and features are inconspicuous, lawfully
existed prior to enactment of WSRA, and are not currently prohibited in wild
segments of the river. See 16 U.S.C. § 1273(b)(I); 47 Fed. Reg. 39454, 39457-58
(Sept. 7, 1982); cf. Wilderness Watch v. USFS, 143 F. Supp. 2d 1186,1195,1204­
07 (D. Mont. 2000). BLM concluded its analysis by pointing out where non­
motorized experiences of solitude were available and determined that it had
accomplished the goal of providing "diverse recreation experiences to the most
people while preserving the outstanding remarkable values of the river." AR
1423; see also AR 1512-13,1898,1904,1907,1945. The propriety of the
decision was reaffirmed in the Plan. BLM undertook and carried out the
unenviable task of balancing solitude and recreation. Its decision was not
arbitrary and capricious.

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User Capacities in the Resource Management Plan

WSRA requires that agencies address user capacities on designated rivers.
16 U.S.C. § 1274(d). If the river was designated on or after January 1, 1986, the
governing agency must address user capacities within three full fiscal years after
designation. Id. at § 1274(d)(l). Rivers designated before January 1,1986, were
given a grace period often years for compliance. Id. at § 1274(d)(2). The
Missouri received its designation in 1976. AR 35721.
BLM set out to comply with the mandate of § 1274 by developing a River
Management Plan ("River Plan") in 1978. The River Plan was updated in 1993
("Update,,).l! The Monument Plan calls for management of the river as follows:
[The river] is guided by the 1993 River Plan Update .... The River
Plan Update identified the specific actions necessary to implement
guidance provided by the [1992] West HiLine RMP ... and to revise
some outdated management actions. In the future, the [R]iver [P]lan
will be updated based on the guidance from the [Monument] ... Plan.
AR 79. The River Plan will be updated again after the Monument Plan and EIS
have been finalized. AR 14330.
BLM has complied with the statutory requirement to address user capacities
through the River Plan and Update. To the extent the Monument Plan amended

The 1978 River Plan and 1993 Update are not the subject ofthis dispute. See 28
U.S.c. § 2401(a) (six-year statute oflimitations).
11

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management of the river, it did so only to comply with the Proclamation: "There is
a need for this ... [Monument] Plan because the existing management of the
Monument, governed by the ... Upper Missouri National Wild and Scenic River
Management Plan Update ... may not always ... sufficiently protect the objects
as identified in the Proclamation." AR 34. These actions did not require BLM
start afresh and address user capacities at this specific juncture. Cf. Friends of
Yosemite Valley, 348 FJd at 796-97 (not reviewing resource management plan).
BLM's decision to not address user capacities in the Monument Plan was not
arbitrary and capricious.
NATIONAL ENVIRONMENTAL POLICY ACT
NEPA is a procedural statute. Inland Empire Pub. Lands Council v. USFS,
88 FJd 754, 758 (9th Cir. 1996). Agencies must consider significant
environmental impacts of a proposed action and inform the public that
environmental concerns are a part ofthe decision. BaIt. Gas and EIec. Co. v. Nat.
Resources Def. Council. Inc., 462 U.S. 87,97 (1983); 40 C.F.R. § 1502.1. The
courts and NEP A require that the agency take a "hard look" when operating under
NEPA. However, the statute mandates no particular substantive outcomes.
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350-51 (1989).

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Reasonable Range ofAlternatives for Backcountry Airstrip Managemenr 2
Courts review the scope and consideration of alternatives set forth by the
agency as required by NEP A under a "rule of reason." City of Carmel-By-TheSea v. US DOT, 123 F.3d 1142, 1150-51 (9th Cir. 1997). The purpose and need of
an environmental impact statement confines the appropriate range of alternatives.
40 C.F.R. § 1502.13.
The purpose and need stated in the proposed Plan and Final EIS was
creation of a comprehensive plan for transportation and visitor use that also
protected Monument objects. AR 10 II, 1134. Six alternatives based upon that
purpose were considered. Alternative A preserved the status quo, allowing all ten
existing airstrips to remain open. Alternative B allowed all ten airstrips to remain
open and authorized additional airstrips to open after further environmental
review. Alternative C allowed seven airstrips to remain open, restricted three of
the remaining seven to seasonal use, and closed three. Alternative D allowed six
airstrips to remain open, restricted four to seasonal use, and closed four.
Alternative E closed all ten airstrips. Alternative F, which was ultimately selected,

BLM argues that Plaintiffs waived this argument by not raising the issue during the
administrative comment period. Plaintiffs commented that "[t]he draft RMP's range of
alternatives relative to backcountry airstrips is woefully inadequate" because "[t]he range goes
from ten strips to seven to six to none." AR 7562-63. The issue was preserved for review.
12

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allowed six airstrips to remain open, restricted one to seasonal use, and closed
four.
The considered alternatives provided a reasonable range. Plaintiffs' demand
that BLM consider a "middle ground" alternative is prohibited. See vt. Yankee
Nuclear Power Com., 435 U.S. at 549. Even were the Court tempted to impose a
"middle ground" requirement, it is clear BLM considered such an alternative. The
closing of none, three, four, and all ten backcountry airstrips was analyzed. A
reasonable range of alternatives was considered. 13
"Hard Look" at the Impacts ofBLM's Decisions
Plaintiffs argue that BLM failed to take a hard look at the impacts on objects
of the Monument, inclusive of those on the river, elk, bighorn sheep, sage brush
obligates, and the Bullwhacker area. Again, the argument falls short in light of the
record.
Plaintiffs have failed to identify any other past, present, or reasonably
foreseeable projects that should have been accounted for in the agency's
cumulative impacts analysis. See 40 C.F.R. § 1508.7; Bering Strait Citizens for

Western Watersheds Project is unclear whether it also alleges a violation ofNEPA for
failure to eonsider an alternative to achieve potential natural community in riparian or upland
areas. The argument is rejeeted for failure to develop the issue and beeause BLM, indeed,
considered such an alternative but ehose to rejeet it. AR 44844; see also N. Alaska Envtl. CIT. v.
Kempthome. 457 F.3d 969, 978-79 (9th Cir. 2006).
B

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Responsible Resource Development v. U.S. Army COIl'S of Engrs., 524 F.3d 938,
955 (9th Cir. 2008) (denying claim, in part, because the Plaintiff "pointed to no
past, present, or reasonably foreseeable future projects comparable in
environmental impact"). Moreover, BLM, indeed, addressed cumulative impacts.
See, e.g., AR 1280-81 (stating the cumulative impacts' analysis is addressed in the
environmental consequences for each resource at the end of each section). No
more was required.
BLM also took the required hard look at direct and indirect impacts. 14
Although Plaintiffs appeared to challenge protection of the river generally, reply
briefs disclose the true dispute exists over preservation of opportunities for
solitude. BLM took the hard look at impacts on such opportunities by balancing
solitude with recreation, as required by the WSRA, and by analyzing the impacts
on the river's visual quality, primitive experience, and scenic character. See, e.g.,
AR 1286,1370-76,1392-1443.
BLM also analyzed the Monument's elk, bighorn sheep, and sagebrush
obligates. ls The cumulative, direct, and indirect impacts were analyzed, including
14 Plaintiffs appeared to exclusively challenge BLM's cumulative impacts' analysis in
initial briefing. Later briefing suggests the challenge extends to direct and indirect impacts'
analysis, as well.

Plaintiffs suggest by footnote that BLM also violated NEP A by not considering the
Plan's impacts on cultural resources resulting from backcountry airstrips. This argument is
abandoned in later briefing. The record also demonstrates that such impacts were, indeed,
15

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those on elk and bighorn sheep from air quality, cultural resources management,
mineral extraction, soil health, livestock grazing, water quality, recreation, and
traffic. See. e.g., AR 1295-1333,1383-87, 1499: 6 The preferred alternative was
selected to "improve habitat or habitat security for ... some important big game
habitats by limiting additional disturbances from most activities, reducing noise,
reducing traffic and total miles of open roads, which could reduce total
disturbances to wildlife and provide larger blocks of secure habitat." AR 1333.
BLM, likewise, analyzed the impacts on sagebrush obligates. See. e.g., 1295­
1307,1311-1333.
While BLM readily admits that it did not conduct an analysis of the impacts
on the Bullwhacker area in one portion of the EIS, it was not required to do so.
See, e.g., 40 C.F.R. § 1502.10. Moreover, the Bullwhacker area is not itself a
Monument object, as already noted. The agency has taken a hard look at the
impacts within, as well as outside, the Bullwhacker area. No more is necessary.
Finally, BLM took a hard look at the impacts of grazing. The detail
recorded in an EIS depends upon the nature and scope of the action proposed by

considered. See, e.g., AR 1281, 1293-95, 1329-31, 1360, 1430-31, 1442-44, 1453, 1462-66,
1477.
BLM purports only to manage habitat for wildlife. It does not manage the wildlife
itself. AR 258; see also Baldwin v. Fish and Game Commn. of Mont., 436 U.S. 371,384-86
(1978).
l6

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the agency. Cal. v. Block. 690 F.2d 753, 761 (9th Crr. 1982). BLM deemed the
programmatic administration of grazing to be outside the scope of the Plan. See
Kleppe v. Sierra Club, 427 U.S. 390,414 (1976). Its decision was not political,
but rather was based on the plain language of the Proclamation. See 66 Fed. Reg.
at 7361. BLM therefore only analyzed the impacts of grazing as applied to all
alternatives.
The topics of analysis included, inter alia, cultural resources, fish and
wildlife, riparian areas, woody vegetation density, river bank trampling, invasive
and noxious plants, water, and economics. See. e.g., AR 1205-07, 1281, 1290,
1295-98, 1335, 1361, 1364, 1467-68. To the extent Plaintiffs claim BLM
inappropriately "reverse-tiered" the Monument EIS to watershed analyses, the
assertion lacks merit. See, e.g., AR 205 ("The Final EIS includes an analysis of
the impacts anticipated from livestock grazing decisions common to all
alternatives. This analysis is not taken from the analysis in the watershed plans.").
While it may have been possible to explore impacts more vigorously and
discuss them more thoroughly, reality of process requires the agency to make a
decision. It has done so here. Plaintiffs have failed to demonstrate that the
impacts analysis' within the over 1,200-page FEIS failed to take the requisite hard
look.

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BLM's Decision to Prepare an Environmental Assessment for the Woodhawk
Allotment Grazing Permit Renewal
BLM prepared an Environmental Assessment for the renewal of the
Woodhawk Allotment Grazing Permit. Plaintiffs challenge that decision, arguing
BLM should have prepared an EIS.
Agencies must develop EISs for "major Federal actions significantly
affecting the quality of the human environment ...." 42 U.S.C. § 4332(2)(C). If
the agency determines that no significant effects exist, it is to issue a Finding of
No Significant Impact and not prepare an EIS. 40 C.F.R. § 1508.9(a)(I).
None ofthe factors listed in the regulation defining significant are present.
See 40 C.F.R. § 1508.27. Additionally, BLM, relying upon its expertise, found
that its additional restrictions would "improve riparian and water quality
conditions that are currently not in conformance with Standards for Rangeland
Health and Guidelines for Livestock Management while maintaining or improving
conditions on the allotment that are already in conformance." AR 44839. BLM
has convincingly demonstrated that the impacts of the Woodhawk Allotment
Grazing Permit are insignificant. No EIS was required.
NATIONAL HISTORIC PRESERVATION ACT

NHPA requires agencies to consider impacts of an undertaking on objects
eligible for inclusion in the National Register. 16 U.S.C. § 470f. An undertaking

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occurs when an agency having direct or indirect jurisdiction funds in whole or in
part a project, activity, or program. 36 C.F.R. § 800.16(y).

COllsuitatioll with MOlltana State Historic Preservatioll Officer
An agency engaging in an undertaking must consult with the State Historic
Preservation Officer ("Officer"). 36 C.F.R. §§ 800.3(c)(3), 800. I 6(v).
Consultation occurs when an agency has consulted with the Officer "in a manner
appropriate to the agency planning process for the undertaking and to the nature of
the undertaking and its effects on historic properties." 36 C.F.R. § 800.3(c)(3).
BLM and the Officer previously agreed that consultation was "appropriate" when
the following occurred:
Each Field Office responsible for preparing a comprehensive land use
plan will at the beginning [of] its planning effort, invite the [Officer]
to participate in scoping for the purpose of identifying issues that
should be addressed in the plan. The BLM will invite the [Officer] to
comment on any proposed cultural resource use allocations that are
made in regional, local, or project plans. Field Offices will send all
draft and final land use plans and cultural resource project plans to
the [Officer] for review and comment.
AR37250.
BLM conceded that it was appropriate to provide further documentation that
consultation, indeed, took place with the Officer. 17 The Court directed
Missouri River Stewards challenge standing of Plaintiffs to assert claims based on
alleged deficiencies in BLM's consultation. Compare San Juan Citizens Alliance v. Norto!1, 586
F. Supp. 2d 1270, 1293 (D. NM. 2008) with Attakai v. U.S., 746 F. Supp. 1395, 1405-09 (D.
17

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supplementation. See, e.g., Citizens to Preserve Overton Park, Inc., 401 U.S. at
419-20. Supplementation revealed that BLM invited the Officer to participate in
scoping and comment on cultural resource use allocations during planning efforts.
See, e.g.. AR 229, 15904, 18973, 19954,46503,46508-09,46523. Draft and final
plans for the Monument were also sent to the Officer. AR 8, 996, 14004, 46517,
46521-22. Appropriate consultation with the Officer as required by NHPA was
carried out.

Inventory Requirements
Plaintiffs argue that BLM violated NHP A by not conducting a Class II or III
inventory18 of historical properties. BLM responds that the level of inventory
depends upon the particular decision at issue, and that it was not required to
conduct a Class II or III inventory because no new surface disturbance had
occurred and only a regional overview was required. 19

Ariz. 1990). This issue need not be resolved. Even if the Court concluded standing existed,
BLM complied with consultation requirements.
La

A Class III inventory is an "intense" and "professionally conducted, thorough

pedestrian survey of an entire target area (except for any subareas exempted), intended to locate
and record all historic properties." BLM Manual 8110-IdentifYing and Evaluating Cultural
Properties at .21B4 (Dec. 3, 2004); see also Te-Moak Tribe ofW. Shoshone Nev. v. USDQI, 608
F.3d 592, 601 n. 10 (9th CiT. 2010). A Class III inventory is different from a Class I inventory,
which considers existing information, and from a Class II inventory, which includes statistically­
based surveys. BLM Manual 811 O-Identifying and Evaluating Cultural Properties at 2.
19 BLM concedes, as it must, that its actions were an undertaking and were it to "propose
any new routes or road relocations," it would be required to conduct "cultural resource

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An agency engaging in such an inventory must make a reasonable and good
faith effort to inventory the area's historical properties within the area of potential
effects. 16 U.S.C. § 470f; 36 C.F.R. § 800.4(b)(1). Cultural resource specialists
from Northwind here identified 383 sites. 20 BLM previously conducted Class II
and Class III inventories of approximately 60,000 acres of the Monument,
approximately 31,000 of which is attributable to a Class III inventory. AR 1187­
88. No new roads, parking areas, motorboat use, airstrips, or canlping areas were
allowed in the Monument. Motorized traffic will remain low on open roads. See,
~,

AR 1285,1521,2050,2101. Should use due to other types of transportation

increase, management actions can be taken to reduce concentration. See, e.g., AR
1043, 1433, 1443-44,5825. Class II or III inventories are not necessary if the
status quo remains, restricts use, travel has not concentrated, or the analysis is
done at the planning level. See, e.g., AR 36360 (Instruction Manual No. 2007­
030); AR 37170 (Information Bulletin No. 2002-101). While a Class II inventory
is appropriate under certain circumstances, the site density for the Monument is I

inventories in compliance with Section 106 of the National Historic Preservation Act." AR
1293. The agency is also completing proactive cultural resource inventories under Section 110
ofNHP A. AR 238.
Although it was recommended by the Northwind cultural resources specialists that a
Class III inventory be conducted, this third-party recommendation does not alone impose a legal
requirement on BLM to do so,
20

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per 2,168 acres. BLM deemed a Class I inventory, consistent with internal agency
guidance, sufficient. AR 1482, 1668; see also Vt. Yankee Nuclear Power COlp.,
435 U.S. at 549 (stating courts may not "impose upon the agency [their] own
notion of which procedures are 'best"'). BLM complied with the inventory
requirements ofNHPA by considering existing information? 1
CONCLUSION

Plaintiffs have failed to carry their burden under the Administrative
Procedure Act. See 5 U.S.C. § 706(2)(A). All requirements of law have been met.
ORDERED:
1.

BLM's Motion for Summary JUdgment22 is GRANTED.

2.

Missouri River Stewards' Motion for Summary Judgment? is

GRANTED.

To the extent Plaintiffs challenge BLM's general overview of cultural resources
information in the Plan, programmatic attacks are not judicially reviewable because no site­
specific action has been taken. See San Juan Citizens Alliance, 586 F. Supp. 2d at 1294.
Challenges to yet undecided actions concerning camping facilities are likewise insulated from
review. See Bennett v. Spear, 520 U.S. 154, 178 (1997).
21

Document No. 142 in CV-09-95-GF-SEH, Document No. 134 in CV-09-96-GF-SEH,
and Document No.1 06 in CV -1 0-04-GF-SEH.
22

Document No. 135 in CV -09-95-GF-SEH, Document No. 127 in CV -09-96-GF-SEH,
and Document No. 99 in CV-I0-04-GF-SEH.
2J

-30­

3.

Aviation Group's Motion for Summary Judgmenf4 is GRANTED.

4.

Plaintiffs' Motions for Summary Judgmenf5 are DENIED.

5.

The ClerktJ!.rected to enter judgment accordingly.

DATED this!L day of August, 2011.

~~~
United States District Judge

Document No. 13& in CV-09-9S-GF-SEH, Document No. 130 in CV-09-96-GF-SEH,
and Document No. 102 in CV-1 0-04-GF-SEH.
24

Document Nos. &9, 93, and 94 in CV-09-9S-GF-SEH, Document Nos. 88 and 89 in
CV-09-96-GF-SEH. and Document Nos. 53, 57, and 5& in CV-1 0-04-GF-SEH.
25

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