Oregon Natural Desert Ass'n v. McDaniel et al

Filing 135

OPINION & ORDER: Granting Plaintiff's Motion for Extension of Time 120 . The parties now have until August 12, 2011 to confer and submit a joint proposed injunction, or failing agreement, separate proposals. Signed on 7/28/11 by Magistrate Judge Paul Papak. (gm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

OREGON NATURAL DESERT ASS'N,
Plaintiff,
3 :09-cv-00369-PK
OPINION AND ORDER

KENNY MCDANIEL, Bum District
Manager, BLM, et al.,
Defendants.
PAP AK, Judge:
Plaintiff Oregon Natural Desert Association ("ONDA") brought this action arising from
the travel management planning process for the Steens Mountain. ONDA alleged that either
BLM's decision adopting its Travel Management Plan ("TMP") or the Interior Board of Land
Appeals' ("IBLA") decision approving BLM's adoption of the TMP violates the Steens
Mountain Cooperative Management and Protection Act of2000 ("Steens Act"), 16 U.S.C. §
460nnn el seq., the Federal Land Policy and Management Act of 1976 ("FLPMA"), 43 U.S.c. §§

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1701-87, the Wilderness Act of 1964, 16 U.S.C. §§ 1131-36, and the National Environmental
Policy Act ("NEPA"), 42 U.S.C. §§ 4321-61.
On July 8, 2011, this court granted reconsideration and altered its previous April 2011
opinion and order, clarifYing that it remanded this action for futiher proceedings before the
Department ofInterior without vacating the IBLA merits decision or BLM's underlying TMP or
environmental analysis. (#118.) The court's July 8th opinion also determined that a preliminaty
or temporary injunction was justified prohibiting mechanical route maintenance on routes that
ONDA alleged were non-existent or obscure, pending a new decision by the IBLA. Id The
court gave the parties two weeks to confer and present either a joint proposal detailing the precise
contours of this injunction, or separate proposals. Id In the interim, the court ordered BLM to
refrain fi·om planned maintenance on Level 2 routes.
On July 18, 2011, ONDA moved for a three-week extension oftime in which to confer
and submit the joint proposal requested by the court, noting that both its lead counsel and
mapping expert were unavailable. (#120.) While ONDA agreed to petmit BLM to proceed with
much ofBLM's planned Level 2 maintenance during these additional three weeks, it objected to
maintenance on portions of three routes, including parts of Smyth Ranch Road, Ward
Place/McLean Road, and Bone Creek Road. Id BLM, however, responded that maintenance on
those segments during the summer maintenance season was necessaty for a variety of reasons,
including to facilitate the Five Creeks Rangeland Restoration Project, enable the potential entry
of firefighting personnel, and ensure reasonable access for private property owners and grazing
petmittees. (#123.) BLM also argued that ONDA had not previously contested the legality of
motorized travel or maintenance of those routes in this action. Id Consequently, BLM agreed to

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acquiesce to the three week extension so long as the court permitted BLM to perfonn its planned
spot maintenance on those specific routes. Id.
On July 22, 2011, this court held a telephone conference with the parties to discuss the
requested extension. The comi orally granted ONDA's motion for an extension oftime, but
declined to rule on BLM's request to carry out its planned maintenance on the three routes
notwithstanding this court's previous order prohibiting such maintenance until the paliies
conferred and submitted a proposed injunction. Now before the comi is ONDA's motion for
extension oftime (#120) and BLM's request for paliial relieffrom this court's injunction against
planned maintenance pending conferral and submission of a proposed temporary injunction
(#123).

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As described in the telephone conference, the parties now have until August 12, 2011 to
confer and submit a joint proposed injunction, or failing agreement, separate proposals. Further,
according to ONDA's concession, BLM may conduct maintenance on routes identified as "OK to
Maintain" and depicted in dark green and blue on maps submitted by BLM. (Hazen Decl., #124,
Exs. A, B.) Finally, pending further order of this court, BLM may also engage in the planned
maintenance of the pOliions of Smyth Ranch Road, Ward PlaceIMcLean Road, and Bone Creek
Road depicted in red on BLM's maps. [d. As indicated by BLM's declarations, BLM's
maintenance activities may not include blading a continuous path and must be limited to
maintaining locations along those routes necessary to ensure effective transportation and prevent
safety risks.
Dated this 28th day of July, 2011.

(\.'.) t \)

aLL(' \ 4?J(

Honorable Paul Papak
United States Magistrate Judge

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