Oregon Natural Desert Ass'n v. McDaniel et al

Filing 82

AMENDED OPINION & ORDER 80 . Signed on 11/23/10 by Magistrate Judge Paul Papak. (gm)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

OREGON NATURAL DESERT ASSOCIATION, Plaintiff, CV 09-369-PK AMENDED OPINION AND ORDER

KENNY MCDANIEL, et al., Defendants. PAPAK, Judge:

Plaintiff Oregon Natural Desert Association (ONDA) brings this action arising from the travel management planning process for the Steens Mountain. ONDA names as defendants the United States Bureau of Land Management ("BLM"), Kenny McDaniel, District Manager for the Burns District ofBLM, and Joan Suther, Field Manager for the Andrews Resource Area of the

Page 1 - A M E N D E D OPINION AND ORDER

Burns District ofBLM.l Specifically, ONDA alleges that BLM's adoption of the Travel Management Plan violates the Steens Mountain Cooperative Management and Protection Act of 2000 ("Steens Act"), 16 U.S.C. § 460nnn et seq., the Federal Land Policy and Management Act of 1976 ("FLPMA"), 43 U.S.C. §§ 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. Now before the court is ONDA's motion for summary judgment (#52), BLM's cross-motion for summmy judgment (#67), and BLM's motion to strike extra-record materials (#59). In this Opinion and Order, I only address the threshold question of whether BLM's TMP Decision Record is a final agency action subject to challenge in federal
COUlt

by ONDA in this case.

BACKGROUND
On November 28, 2007, BLM issued a Decision Record adopting the proposed Transportation Management Plan (TMP). AR 783. On January 4,2008, ONDA appealed from and petitioned for stay of the effect of that decision to the Department of Interior's Board of Land Appeals (lBLA), raising four separate claims. AR 619-690, 242-294. On April 2, 2008, the IBLA granted a stay as to the part ofthe BLM decision to open Obscure Routes to public vehicle traffic, but denied ONDA's petition for stay as to all other challenged aspects ofBLM's decision. AR 202. On Februmy 19, 2009, IBLA reversed BLM's decision to permit motorized traffic on the Obscure Routes within the CMP A, but affilmed BLM's TMP decision in all other respects. AR 53-57, 65. ONDA filed this action on April 13, 2009, challenging BLM's Decision Record as the final agency action.

I

For simplicity, I refer to defendants collectively as BLM.

Page 2 - AMENDED OPINION AND ORDER

DISCUSSION As a threshold matter, this court must first identifY the agency action under review. Nat'!
Parks & Conservation Ass'n v. BLl',i, 606 FJd 1058, 1064 (9th Cir. 2010). ONDA argues that

BLM's TMP Decision Record from November, 2007, and the IBLA's February, 2009, decision are both final agency actions subject to judicial review. Consequently, ONDA contends that it has properly elected to seek review of BLM's Decision Record in this case. By contrast, BLM contends the IBLA's February, 2009, decision on ONDA's appeal of the TMP decision is the only final agency action susceptible to judicial review under the APA, since the IBLA's merits decision effectively rendered the BLM Decision Record non-final. This threshold matter is . critical, since it affects the remainder of the court's analysis in this case. Under the Administrative Procedure Act (AP A), only "final agency action" is subject to judicial review. 5 U.S.C. § 704. The Supreme Court holds that, in general, an agency action is final if it meets two requirements: First, the action must mark the 'consummation' of the agency's decisionmaking processit must not be of a merely tentative or interlocutory nature. And second, the action must be one by which 'rights or obligations have been determined,' or from which 'legal consequences will flow.'
Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (intemal citations and quotations omitted). Two

separate Depmiment ofInterior regulations specifically address which administrative decisions are considered final agency actions. First, 43 C.F.R. § 4.21(a) addresses final agency actions pending an appeal ofa BLM decision before the IBLA. 43 C.F.R. § 4.21 (a) (titled as "Effect of decision pending appeal.") Under that subsection,