Southern Utah Wilderness Alliance et al v. US Department of the Interior et al

Filing 82

MEMORANDUM DECISIONAND ORDER ON PETITION FOR REVIEW OF AGENCY ACTIONre 75 Motion for Review of Agency Action. Signed by Judge David Barlow on 03/31/2021. (jl)

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THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
SOUTHERN UTAH WILDERNESS
ALLIANCE, et al.,
Plaintiffs,

MEMORANDUM DECISION
AND ORDER ON PETITION FOR
REVIEW OF AGENCY ACTION

v.
U.S. DEPT. OF THE INTERIOR et al.,
Defendants,
Case No. 2:19-cv-00297-DBB

and
STATE OF UTAH; and GARFIELD
COUNTY, UTAH,

District Judge David Barlow

Defendant-Intervenors.
Before the court is Southern Utah Wilderness Alliance, The Wilderness Society, and
National Parks Conservation Association’s (collectively, SUWA) petition for review of agency
action.1 At issue is a Garfield County proposal to improve a 7.5-mile segment of the Burr Trail.
Requesting judicial review of Bureau of Land Management’s (BLM) decisions regarding the
proposed improvement, SUWA generally raises three arguments. First, SUWA argues that
Bureau of Land Management’s (BLM) decision recognizing a Garfield County right-of-way over
a portion of the Burr Trail was arbitrary and capricious.2 Second, it contends that BLM’s
conclusion that Garfield County’s proposed road improvement was within the scope of the right-

1

Opening Brief, ECF No. 75; Amended Complaint, ECF No. 57.

2

ECF No. 75 at 21.

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of-way was arbitrary and capricious.3 Third, it argues that BLM failed to take a sufficiently hard
look at the environmental impacts of the proposed improvement.4 For their part, Defendants
generally argue that there is no final agency action to review and therefore that this court lacks
jurisdiction.5 But if there is a final decision over which the court has jurisdiction, Defendants
contend BLM’s conclusion that the proposed improvement was within the scope of the right-ofway is reasonable and its consideration of environmental impacts was sufficient.6 Having
considered the briefing, the record, and relevant law, the court determines as follows.
BACKGROUND FACTS
At approximately 66 miles in length, the Burr Trail connects the town of Boulder on the
northwest to Bullfrog on the southeast.7 It generally consists of four distinct segments:
(1) Boulder to the west boundary of Capital Reef National Park (30.7 miles); (2) through Capital
Reef (8.4 miles); (3) eastern boundary of Capital Reef to the northern boundary of Glen Canyon
National Recreation Area (19.2 miles); and (4) through Glen Canyon to Highway U-276 near
Bullfrog Basin Marina.8 Roughly in the middle of the Burr Trail, a 7.5-mile portion on the
western end of Segment 3 (the Stratton Segment) travels from the eastern boundary of Capital
Reef to Stratton Road at Eggnog Junction.9 The Stratton Segment, together with the Capital Reef
8.4-mile segment, constituted the Burr Trail’s only non-chip sealed road segments.10 This

3

Id. at 24.

4

Id. at 32.

5

ECF No. 76 at 16–19.

6

Id. at 22–39.

7

BLM0250; ECF No. 75 at 12.

8

BLM0250.

9

Id.; ECF No. 75 at 12.

10

BLM0250–51.

2

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approximately sixteen-mile portion was a graveled, two-lane road.11 The Stratton Segment of the
Burr Trail is bordered on the north and east by the Mount Pennell Wilderness Study Area
(Pennell WSA), except for portions that cross State of Utah lands.12
In 2009, Garfield County notified BLM that it would chip seal the Stratton Segment.13
The National Park Service and conservation groups asserted that the proposed action would
impact wildlife, air quality, and wilderness values in and outside of Capital Reef by increasing
visitation.14 BLM prepared a draft Environmental Assessment (EA) in 2011 but did not release it
to the public or authorize the surface improvements.15
On June 6, 2018, Garfield County again notified BLM that it would be chip sealing the
Stratton Segment, asserting that the segment was within the County’s R.S. 2477 right-of-way.16
The County sought to bring the last sixteen miles of graveled surface Burr Trail up to the chip
seal standard, citing traveler “comfort and safety issues,” as well as increasingly scarce gravel
and water resources.17 BLM requested any updated traffic and safety statistics the County would

11

Id.; BLM0070.

12

BLM 250.

13

BLM0300.

14

BLM0310–13; BLM0304–08; see also BLM0314–15 (NPS follow-up letter).

15

BLM0847–88.

16

BLM0035. BLM has long taken the position that Garfield County holds an R.S. 2477 right-of-way over the Burr
Trail. See, e.g., Sierra Club v. Hodel, 675 F. Supp. 594, 600 (D. Utah 1987) (observing that the Federal Defendants,
including the BLM, took the position that “Garfield County holds a valid right-of-way over the Burr Trail”), aff’d in
part, rev’d in part on other grounds, 848 F.2d 1068 (10th Cir. 1988); United States v. Garfield County, 122 F. Supp.
2d 1201, 1218 (D. Utah 2000) (noting that the federal defendants conceded the existence of Garfield County’s R.S.
2477 right-of-way over the Capitol Reef National Park segment of the Burr Trail); Kane County, Utah v.
Kempthorne, 495 F. Supp. 2d 1143, 1158 n.15 (D. Utah 2007) (noting that a BLM management plan of the Grand
Staircase-Escalante National Monument identified the Burr Trail as an R.S. 2477 right-of-way), aff’d sub nom. Kane
County Utah v. Salazar, 562 F.3d 1077 (10th Cir. 2009).
17

BLM0046, 50.

3

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want it to consider, but no specific response appears in the record.18 However, BLM indicated
that it received additional information it requested in July 2018.19 BLM determined that the
proposed chip seal was an improvement to the County’s right-of-way under R.S. 2477 and was
within the scope of the right-of-way.20 It determined that the project was reasonable and
necessary and prepared an EA to determine whether the proposed project would adversely
impact the surrounding public lands and resources.21 In particular, BLM evaluated the impact to
the Mount Pennell Wilderness Study Area (WSA), adjacent to portions of the Stratton Segment.22
In its EA, BLM determined no direct impacts to the Mount Pennell WSA from the
proposed chip seal project because it was within the existing disturbance of the gravel road: “The
fact that the road already exists and is adjacent to the WSA will not change, whether the road
remains graveled or is chip sealed.”23 BLM also evaluated indirect impacts resulting from noise,
dust, and visual disturbance.24 After receiving comments, BLM issued a Finding of No
Significant Impact (FONSI) on April 26, 2019.25 Based upon its review of the EA, BLM
determined that the proposed chip seal project “will not adversely affect the surrounding public
lands or resources, including the wilderness values of the Mount Pennell WSA.”26

BLM0038 (stating “if the County has updated traffic numbers, maintenance efforts, safety stats, that you think
would be important for [BLM] to include/consider during our review, we would appreciate having that
information.”).
18

19

BLM0251.

20

BLM0249–51.

21

BLM0249, 250; IM 2008-175 at 4.

22

BLM0249

23

BLM0254.

24

BLM0254–56.

25

BLM0270–73.

26

BLM0271–72.

4

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With respect to noise, BLM observed that “it is difficult to quantify how changes in
roadway surface type may impact noise propagation and opportunities for solitude in areas with
wilderness characteristics.”27 It found that construction would cause limited-duration noise and
would be “relatively minor.”28 Indirectly, it determined the surface improvement may impact
opportunity for solitude by generating more noise than the gravel road, but the opposite could
also be true.29 Specifically, chip seal surface may be quieter compared to gravel roads—vehicles
travelling on the smoother surface would generate less noise.30 But the higher travel speeds
facilitated by a smoother surface would generate more noise and reach deeper into the WSA
disturbing solitude and primitive recreation.31 BLM estimated that the noise produced by
vehicles on the chip seal surface would be “unlikely to impact the more remote and rugged
portions of the WSA that receive higher levels of use.”32
Considering dust generation and deposition from the road, BLM concluded that it would
increase during the short-term construction, but decrease over the long run because the vehicles
traveling on the sealed surface would generate less dust.33 Dust deposition matters because
nearby plants likely might experience impacts to photosynthesis, respiration, and transpiration.34
Dust clouds also may be visible to visitors within the WSA.35 The extent of dust spread,

27

BLM0255.

28

BLM0254.

29

BLM0255.

30

Id.

31

Id.

32

Id.

33

Id.

34

Id.

35

Id.

5

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however, would depend on road conditions and climate.36 BLM ultimately concluded that the
proposed surface improvement would reduce dust dispersion, benefiting the adjacent WSA.37
Weighing visual impact from the improvement, BLM determined that the construction
would temporarily detract from the scenic quality of the area.38 Once completed, the chip seal,
composed of colors contrasting with the land, would be visible from some parts of the WSA.39
The BLM anticipated a relatively low impact, however, because much of the adjacent WSA land
is flat, the WSA has no “key observation points,” and the adjacent areas are less-visited
compared to other parts of the WSA.40
On April 26, 2019, BLM advised Garfield County that it had determined the project was
reasonable and necessary and, therefore, within the scope of the right-of-way.41 BLM also
explained that “the proposed project would not adversely affect the surrounding public lands or
resources, including the Mount Pennell WSA.”42 Garfield County then commenced the chip seal
project, which was finished within a few days.43
STANDARD OF REVIEW
In its review of agency action, the 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.”44 “The duty of a court reviewing agency action under the

36

Id.

37

BLM0255–56.

38

BLM0256.

39

Id.

40

Id.

41

BLM0279.

42

BLM0280.

43

ECF No. 75 at 19.

44

5 U.S.C. § 706(2)(A).

6

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‘arbitrary or capricious’ standard is to ascertain whether the agency examined the relevant data
and articulated a rational connection between the facts found and the decision made.”45
An agency’s decision is arbitrary and capricious if the agency (1) entirely failed to
consider an important aspect of the problem, (2) offered an explanation for its
decision that runs counter to the evidence before the agency, or is so implausible
that it could not be ascribed to a difference in view or the product of agency
expertise, (3) failed to base its decision on consideration of the relevant factors, or
(4) made a clear error of judgment.46
“When called upon to review factual determinations made by an agency as part of its
NEPA process, short of a ‘clear error of judgment’ we ask only whether the agency took a ‘hard
look’ at information relevant to the decision.”47 “A presumption of validity attaches to the agency
action and the burden of proof rests with the appellants who challenge such action.”48 In sum, the
court’s review is “highly deferential.”49
DISCUSSION
Congress passed Revised Statute 2477 (R.S. 2477) as part of the Mining Act of 1866,
generally granting “the right of way for the construction of highways over public lands, not
reserved for public uses.”50 This provision effectuated a century-long federal policy of providing
entitlement over unreserved lands to “private productive hands” in an effort to promote land
development.51 On October 21, 1976, Congress enacted the Federal Land Policy Management
Citizens’ Comm. to Save Our Canyons v. Krueger, 513 F.3d 1169, 1176 (10th Cir. 2008) (citation and internal
quotation marks omitted).
45

46

New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 704 (10th Cir. 2009) (citation and
internal quotation marks omitted).
47

Id.

48

Citizens’ Comm. to Save Our Canyons, 513 F.3d at 1176 (citation and internal quotation marks omitted).

49

Id. (citation and internal quotation marks omitted).

50

See S. Utah Wilderness All. v. Bureau of Land Mgmt., 425 F.3d 735, 740 (10th Cir. 2005), as amended on denial
of reh’g (Jan. 6, 2006) (quoting Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253, codified at 43 U.S.C. § 932);
43 U.S.C. § 932 (stating: “And be it further enacted, that the right of way for the construction of highways over
public lands, not reserved for public uses, is hereby granted”).
51

See S. Utah Wilderness All., 425 F.3d at 740,

7

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Act of 1976 (FLPMA), establishing a comprehensive framework for managing federal public
lands and effectively preferring federal retention of lands.52 Congress also repealed R.S. 2477,
though it preserved any “valid lease, permit, patent, right-of-way, or other land use right or
authorization existing on the date of approval of this Act.”53 Although new rights of way may
still be issued by the federal government, the issuances must comply with the more restrictive
FLPMA.54
The holder of an R.S. 2477 right-of-way “may sometimes be entitled to change the
character of the roadway when needed to accommodate traditional uses, but even legitimate
changes in the character of the roadway require consultation when those changes go beyond
routine maintenance.”55 To move forward with improvements, the right-of-way holder “must
advise the federal land management agency of that work in advance, affording the agency a fair
opportunity to carry out its own duties to determine whether the proposed improvement is
reasonable and necessary in light of the traditional uses of the right of way as of October 21,
1976, to study potential effects, and if appropriate, to formulate alternatives that serve to protect
the lands.”56 To implement the consultation requirement, BLM issued Instruction Memorandum
2008-175 (IM 2008) providing consultation process guidance to agencies.57

52

See id.; 43 U.S.C. § 1701 et seq.

53

PL 94–579 (S 507), PL 94–579, October 21, 1976, 90 Stat 2743; see Kane County, Utah v. United States, 772
F.3d 1205, 1223 (10th Cir. 2014).
54

See generally 43 U.S.C. § 1761.

55

S. Utah Wilderness All., 425 F.3d at 748.

56

Id.

57

ECF No. 75-4; see ECF No. 76 at 5.

8

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I.

The Court Has Jurisdiction to Review BLM’s Decision.

As an initial matter, the court must address whether it has jurisdiction over Plaintiffs’
petition. Defendants argue that BLM’s determinations are not final agency actions subject to
judicial review under the Administrative Procedures Act (APA).58
The APA authorizes judicial review of agency actions “made reviewable by statute and
final agency action.”59 For purposes of review, an agency action is considered final if the action
“mark[s] the consummation of the agency’s decisionmaking process—it must not be of a merely
tentative or interlocutory nature”—and if it determines rights or obligations or is one “from
which legal consequences will flow.”60 Finality is to be determined “in a pragmatic way.”61
Here, BLM previously determined that Garfield County held an R.S. 2477 right-of-way
over the Stratton Segment, and it determined that the proposed chip seal improvement was
reasonable and necessary to its continued use. It further determined that the proposed
improvement would not significantly impact the adjacent lands over which it has management
obligations. The federal Defendants argue that BLM’s decision here was not final agency action
because the agency lacked authority to make legally binding determinations as to the existence
and scope of an R.S. 2477 right-of-way.62 It is true that BLM lacks authority to make a binding
determination as to the existence of an R.S. 2477 right-of-way63, but that is not the end of the
issue.

58

5 U.S.C. § 704.

59

Id.

60

Ctr. For Native Ecosystems v. Cables, 509 F.3d 1310, 1329 (10th Cir. 2007) (quoting Bennett v. Spear, 520
U.S. 154, 177–78 (1997)).
61

F.T.C. v. Standard Oil Co. of California, 449 U.S. 232, 239 (1980) (citation and internal quotation marks
omitted).
62

ECF No. 76 at 16–19.

S. Utah Wilderness All., 425 F.3d at 757 (holding that “nothing in the terms of R.S. 2477 gives the BLM authority
to make binding determinations on the validity of the rights of way granted thereunder, and we decline to infer such
63

9

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Because an R.S. 2477 right-of-way is in the nature of an easement over land managed by
the federal government, the Tenth Circuit requires advance consultation prior to a county’s
implementing proposed changes to the roadway.64 This advance notice affords the agency the
opportunity to “effectively discharge its responsibilities to determine whether the proposed
changes are reasonable and necessary, whether they would impair or degrade the surrounding
lands, and whether modifications to the plans should be proposed.”65 In other words, BLM must
do two things: assess whether the proposed improvement is within the scope of the right-of-way
and evaluate the potential impacts from that development.
Here, BLM engaged in the required consultation with Garfield County. BLM determined
the County’s proposal was reasonable and necessary and thus within the scope of the right-ofway. It further concluded that the improvement would not significantly impact the adjacent
lands.66 Consequently, BLM’s decision constitutes “the ‘consummation’ of the agency’s
decisionmaking process,” and it is “not . . . of a merely tentative or interlocutory nature.”67
The decision also was legally consequential for both the state and federal government.68
Following its assessment, BLM’s decision allowed Garfield County to invest resources in and
proceed with construction of the road improvement free of impediments.69 Thus, BLM’s decision

authority from silence when the statute creates no executive role for the BLM.”); see id. at 748 (“the owner of an
R.S. 2477 right-of-way and the owner of the servient estate shall exercise their rights without unreasonably
interfering with one another.” (brackets omitted) (quoting Utah Code Ann. § 72-5-303(2)); id. (“The initial
determination of whether the construction work falls within the scope of an established right of way is to be made by
the federal land management agency, which has an obligation to render its decision in a timely and expeditious
manner.”).
64

Id. at 747.

65

Id.

66

BLM0244, 249; see also BLM0851, 860–72.

67

Bennett, 520 U.S. at 178 (citations and internal quotation marks omitted).

68

See id. at 177–78.

69

See generally BLM0244, 249; see also BLM0851, 860–72.

10

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is final and reviewable under the APA even though BLM has no authority to finally determine
the existence of an R.S. 2477 right-of-way. Accordingly, this court has jurisdiction over this
matter.
II.

BLM’s Right-of-Way Decision Was Not Arbitrary and Capricious.

Plaintiffs challenge two aspects of BLM’s decision with respect to the road improvement.
First, they argue that BLM violated FLPMA when it determined that Garfield County held an
R.S. 2477 right-of-way over the Stratton Segment.70 Second, Plaintiffs contend that BLM’s
“reasonable and necessary” scope decision was arbitrary and capricious.71 The court addresses
each in turn.
A. Whether Garfield County Holds a Valid Right-of-Way Over the Stratton Segment
Is a Question Not Properly Before the Court.
Plaintiffs contend that BLM’s decision with respect to Garfield County’s R.S. 2477 rightof-way violated FLPMA.72 Although framed as a challenge to BLM’s decision under FLPMA,
Plaintiffs argue that BLM was wrong in its assessment because Garfield County does not hold a
valid right-of-way over the Burr Trail segment at issue in this case.73 Indeed, Plaintiffs broadly
contend that “no federal court has ever quieted title to any stretch of the 66-mile Burr Trail in
favor of Garfield County, and thus the County has no such right-of-way.”74

70

ECF No. 75 at 21–24.

71

Id. at 24–31.

72

Id. at 22.

See id. (“BLM’s conclusion that Hodel I Appeal [Sierra Club v. Hodel, 848 F.2d 1068, 1073 (10th Cir. 1988)]
adjudicated title of an R.S. 2477 right-of-way for the 7.5-mile section of Segment 3 is wrong.”).
73

74

ECF No. 57 at ¶ 1; see ECF No. 75 at 22.

11

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The instant case is not about whether Garfield County in fact holds such a right-of-way.75
That question is at issue in currently pending Quiet Title Act litigation in which all of the parties
here are also parties there.76 Plaintiffs argue that BLM’s decision violated FLPMA Title V
because, under this provision, “BLM must . . . determine there is a valid existing right that predates the [FLPMA] and that the improvement is within the scope of the right[.]”77 Importantly,
however, FLPMA does not require that BLM make such an affirmative determination of the
existence of an R.S. 2477 right-of-way.
As it concerned the federal grant of rights-of-way over federal land, Congress’ passage of
FLPMA replaced the century old R.S. 2477 open grant mechanism.78 However, “FLPMA
explicitly preserved and protected R.S. 2477 rights of way in existence as of October 21,
1976.”79 Although establishing more restrictions and greater agency control, a note to the Act
explained that “actions by the Secretary concerned under this Act shall be subject to valid
existing rights.”80 Although FLPMA preserves existing rights-of-way, nothing in the Act—indeed
“nothing in federal law”—requires BLM to determine the existence of an R.S. 2477 right-ofway.81

See ECF No. 75 at 19–20; but see ECF No. 75 at 23–24 (“If the Court concludes that Garfield County does not
hold an adjudicated R.S. 2477 right-of-way over Segment 3, it need not proceed further and may instead set aside
BLM’s decisions on the basis of this violation of FLPMA Title V alone.”).
75

76

See Garfield County (1) v. United States, No. 2:11-cv-01045-CW (D. Utah Nov. 14, 2011).

77

ECF No. 75 at 6.

See Sierra Club v. Hodel, 848 F.2d 1068, 1078 (10th Cir. 1988) (observing that FLPMA “departs from the federal
government’s earlier policy of giving away public lands, in favor of a philosophy of retention and management to
maximize the multitudinous interests in the lands”); 43 U.S.C. § 1769(a).
78

79

S. Utah Wilderness All., 425 F.3d at 760; see Kane County, Utah, 772 F.3d at 1223.

80

See 43 U.S.C. § 1701 note (h), PL 94–579 (S 507), PL 94–579, October 21, 1976, 90 Stat 2743.

81

Kane County Utah v. Salazar, 562 F.3d 1077, 1087 (10th Cir. 2009). The Tenth Circuit has held that BLM lacks
authority “to make binding determinations on the validity of the rights of way” under R.S 2477. S. Utah Wilderness
All., 425 F.3d at 757.

12

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In SUWA v. BLM, the Tenth Circuit held that BLM lacks authority “to make binding
determinations on the validity of the rights of way” granted under R.S. 2477.82 Of course, “[t]his
does not mean that the BLM is forbidden from determining the validity of R.S. 2477 rights of
way for its own purposes.”83 Specifically addressing this informal determination, however, the
Tenth Circuit has explained that federal law does not impose a duty on BLM to “administratively
adjudicate” the existence of a right-of-way.84 Despite Plaintiffs’ argument to the contrary here,
FLPMA does not require BLM to determine the existence of a valid existing right-of-way that
predates the Act.85
Relatedly, Plaintiffs argue that BLM violated internal policy when it determined that
Garfield County’s right-of-way over the Stratton Segment had been adjudicated by a federal
court.86 BLM’s Instruction Memorandum 2008-175 addresses the “consultation process on proposed
improvements to revised statute 2477 rights-of-way.”87 It defines the “holder” of a right-of-way as
“(1) a state or political subdivision of a state that holds an R.S. 2477 ROW, as adjudicated by a
Federal court, or (2) a state or political subdivision of a state claiming to have an R.S. 2477 ROW
that has been recognized by the BLM in an administrative nonbinding determination (NBD).”88

82

S. Utah Wilderness All., 425 F.3d at 757.

83

Id.

See Kane County Utah, 562 F.3d at 1087 (observing that “neither the statute, 43 U.S.C. § 1701 note (providing
that ‘all actions by the Secretary concerned under this Act shall be subject to valid existing rights’), nor the
regulation, 43 C.F.R. § 2801.4 (2000),” imposes a requirement that the agency administratively adjudicate a
purported R.S. 2477 right-of-way).
84

85

ECF No. 75 at 6. To the extent that Plaintiffs seek a judicial determination of the existence of an R.S. 2477 rightof-way, the instant petition for review of agency action “shortcut[s] the existing processes for determining . . .
unresolved R.S. 2477 claims[.]” Kane County Utah, 562 F.3d at 1087. Similarly, although the agency retains
authority to make internal assessments for its own purposes, Plaintiffs have identified no cases—and the court has
found none—authorizing review of such a decision under the APA.
86

See ECF No. 75 at 21.

87

See Instruction Memorandum 2008-175, ECF No. 75-4.

88

Id. at 2.

13

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Plaintiffs assert that BLM, under the first option, improperly relied on federal caselaw in its
determination that Garfield County was a right-of-way holder.89 Plaintiffs’ argument is not well-taken
because it provides no authority that the provisions in BLM’s Instruction Memoranda are enforceable
under the APA,90 and the agency’s power to make this decision is committed to its discretion.91
First, the IM provides BLM guidance on carrying out the consultation process explained in
SUWA v. BLM.92 Where, as here, a party challenges BLM’s substantive right-of-way determination,
that claim could be pursued under, for example, the Quiet Title Act.93 As noted previously, Plaintiffs
themselves are already parties in just such a case.94 This IM is guidance, not the kind of “law” the
violation of which “should invalidate agency action” under the APA.95 In any event, BLM followed
its IM; it just came to a conclusion with which Plaintiffs understandably disagree. In a NEPA case,
the court’s “highly deferential review” is not directed to determining if the agency is mistaken, but
rather to determine if the agency’s action was arbitrary and capricious. While BLM’s view ultimately
may or may not hold up in the previously referenced litigation, it had a non-arbitrary basis which it
articulated.

89

ECF No. 75 at 9–10, 9 n.5.

90

Plaintiffs do cite two cases in which agencies failed to follow their own regulations. N.M. Farm & Livestock
Bureau v. U.S. Dep't of Interior, 952 F.3d 1216 (10th Cir. 2020); Utahns for Better Transp. v. Dep’t of Transp., 305
F.3d 1152 (10th Cir. 2002). But as discussed below, the record here shows that BLM followed the procedure laid out
in the guidance memo, it just arrived a conclusion different from the one Plaintiffs feel is correct.
91

5 U.S.C. § 701(a)(2). Plaintiffs argue FLPMA mandates a BLM decision on the existence of a right-of-way, but
they fail to direct the court to any such provision.
92

See ECF No. 76 at 4–5.

See 5 U.S.C. § 704 (“Agency action made reviewable by statute and final agency action for which there is no
other adequate remedy in a court are subject to judicial review.”).
93

94

See generally 28 U.S.C. § 2409a. It is worth noting that Plaintiffs focus their challenge on whether the courts in
the Hodel line of cases resolved the Burr Trail right-of-way question, presumably because IM 2008-175 identifies
adjudication by a federal court as a method of determining the existence. As context, the record suggests that BLM
has long taken the position that Garfield County holds such a right-of-way. See BLM0242–44 (identifying
administrative decisions dating back to 1984 that determine Garfield County holds an R.S. 2477 right-of-way over
the Burr Trail).
95

See Colorado Envtl. Coal. v. Wenker, 353 F.3d 1221, 1228 (10th Cir. 2004).

14

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Second, whatever legal authority BLM retains to determine the existence of an R.S. 2477
right-of-way for its own purposes, that decision-making power is committed to the agency’s
discretion and thus involves an APA review exception.96 The law is clear that the BLM has no

executive role to play in actually determining an R.S. 2477 right-of-way.97 But it has always had
authority to make such a decision for its own internal purposes.98 Accordingly, the court declines
the invitation to opine on whether BLM correctly made its internal right-of-way decision.

B. BLM’s Determination that the Improvement Was Within the Scope of the Rightof-Way Is Not Arbitrary and Capricious.
Plaintiffs next challenge BLM’s determination that the proposed improvement was within
the scope of the right-of-way.99 Plaintiffs argue that BLM’s right-of-way scope decision was
arbitrary and capricious because: (1) BLM’s determination regarding safety lacked factual
support and a rational explanation and it failed to consider traditional uses of the road; (2) BLM
improperly relied on the disturbed width of the roadway as a measure of scope; and (3) BLM
failed to explain a change in its earlier position that leaving the Stratton Segment in a graveled
condition satisfied the reasonable and necessary standard.100
1. BLM Addressed Safety Considerations in Light of Traditional Uses of the Road.
“The APA’s arbitrary and capricious standard is a deferential one; administrative
determinations may be set aside only for substantial procedural or substantive reasons, and the

96

See 5 U.S.C. § 701(a)(2).

97

See S. Utah Wilderness All., 425 F.3d at 757.

Id. (“This does not mean that the BLM is forbidden from determining the validity of R.S. 2477 rights of way for
its own purposes.” The BLM has always had this authority.”).
98

99

ECF No. 75 at 24.

100

Id. at 24–25.

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court cannot substitute its judgment for that of the agency.”101 A reviewing court must “ascertain
whether the agency examined the relevant data and articulated a rational connection between the
facts found and the decision made.”102 To survive this review, an agency’s action must be
“supported by the facts in the record.”103
Generally, “[t]he ‘scope’ of a right-of-way refers to the bundle of property rights
possessed by the holder of the right-of-way.”104 For more than a century, R.S. 2477 granted
rights-of-way for the construction of highways over public lands.105 Once vested, a right-of-way
granted the municipality an interest in the continued use of the road “in the light of traditional
uses to which the right-of-way was put.”106 “In other words, the scope of an R.S. 2477 right of
way is limited by the established usage of the route” as of October 21, 1976, the date of repeal of
the statute.107 The Tenth Circuit has affirmed uses of the Burr Trail for “driving livestock; oil,
water, and mineral development; transportation by County residents between Bullfrog and other
cities in Garfield County; and, at least since 1973, access for tourists to Bullfrog Marina on Lake
Powell.”108 The holder of a right-of-way “may sometimes be entitled to change the character of

Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1164 (10th Cir. 2002) (citation omitted), as
modified on reh’g, 319 F.3d 1207 (10th Cir. 2003).
101

102

Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1574 (10th Cir. 1994) (citing Motor Vehicle Mfrs. Ass'n of
U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
Id. at 1575 (“Because the arbitrary and capricious standard focuses on the rationality of an agency’s
decisionmaking process rather than on the rationality of the actual decision, it is well-established that an agency’s
action must be upheld, if at all, on the basis articulated by the agency itself.” (brackets and internal quotation marks
omitted) (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 50)).
103

104

Hodel, 848 F.2d at 1079 n.9.

105

See Sierra Club v. Hodel, 675 F. Supp. 594, 601–02 (D. Utah 1987).

Hodel, 848 F.2d at 1083; see also id. (“Rights-of-way are a species of easements and are subject to the principles
that govern the scope of easement.”); S. Utah Wilderness All., 425 F.3d at 747 (explaining that a right-of-way “is not
tantamount to fee simple ownership of a defined parcel of territory,” but “an entitlement to use certain land in a
particular way”).
106

107

S. Utah Wilderness All., 425 F.3d at 746.

108

Hodel, 848 F.2d at 1084.

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the roadway when needed to accommodate traditional uses.”109 “[I]mprovements on a valid R.S.
2477 right of way are limited to those reasonable and necessary for the type of use to which the
road has been put.”110 Thus, “the scope of Garfield County’s right-of-way is that which is
reasonable and necessary to ensure safe travel” for the uses to which the right-of-way has been
put.111 Indeed, such a right-of-way may be improved “as necessary to meet the exigencies of
increased travel, so long as this was done in the light of traditional uses to which the right-of-way
was put as of repeal of the statute in 1976.”112 Plaintiffs contend that BLM’s “reasonable and
necessary” determination lacked evidence on safety of travel over the segment.113
In 2009, Garfield County notified BLM that it intended to improve the Stratton
Segment.114 BLM produced a draft environmental assessment “to determine whether Garfield
County’s proposed improvements are (1) within the scope of the recognized existing R.S. 2477
ROW, and (2) whether the improvements may adversely impact the surrounding public lands or
resources, including a WSA, and lands with wilderness characteristics.”115 The County did not
proceed with the improvements at that time and BLM did not release its draft EA.
In 2018, the County notified BLM that it intended to move forward with its earlier 2009
chip sealing project submittal.116 It explained:

109

S. Utah Wilderness All., 425 F.3d at 748.

110

Id. at 746 (internal quotation marks omitted) (quoting Hodel, 848 F.2d at 1083).

111

Hodel, 848 F.2d at 1084

112

S. Utah Wilderness All., 425 F.3d at 746 (internal quotation marks omitted) (quoting Hodel, 848 F.2d at 1083).

113

ECF No. 75 at 25–26.

114

BLM0035 (indicating Garfield County was ready to begin the chip seal improvement to the segment at issue and
that “the contemplated work is limited to the improved roadway/traveled portion of the highway and consequently is
located in the center of the disturbed area, well away from areas that have been previously undisturbed”).
115

BLM0851. The 2011 EA was not released to the public and BLM did not authorize the improvements at that
time. The environmental impact assessment is addressed in the next section.
116

BLM0035.

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Traffic in the area, interest in public lands and a dry cycle has increased Garfield
County’s maintenance burden on the Burr Trail Road. The improved gravel
surface has experienced wash boarding and creates comfort and safety issues for
the travelling public. Additionally, gravel and water sources in the area are
becoming increasingly difficult to obtain. Consequently, this section of the road
needs to be brought to the same standard as the other 50 miles that have already
been surfaced.117
With respect to the uses, BLM determined that “transportation of livestock; oil, water, and
mineral development; transportation by County residents between Bullfrog and other cities in
Garfield County; and, at least since 1973, access for tourists to Bullfrog Marina on Lake
Powell,” were “still the primary uses of the road.”118 BLM also explained that the Stratton
Segment “has a gravel surface that is relatively rough in places, and which has experienced wash
boarding in others that the County believes causes driving discomfort and safety issues for the
traveling public.”119 It further determined that “the gravel and water sources in the area that
could be used to maintain this portion of the road are becoming increasingly scarce and difficult
to obtain.”120
BLM appears to have adopted, among other things, Garfield County’s safety rationale for
the proposed improvement.121 BLM determined that the gravel road was rough and washboarded
in places, and BLM acknowledged that the County believed these presented safety issues for
travel over the segment.122 BLM’s reliance on the statements of Garfield County does not mean
that the facts were unsubstantiated. Nothing in the record contradicts BLM’s determination

117

BLM0046, 50. A chip seal, or bituminous surface treatment, is a type of surface paving generally making use of
layers of asphalt and a fine aggregate or crushed rock. See U.S. Forest Service, ASPHALT SEAL-COAT TREATMENTS
(Alan Yamada), available at https://www.fs.fed.us/eng/pubs/html/99771201/99771201.htm.
118

BLM0245; accord Hodel, 848 F.2d at 1084.

119

BLM0245.

120

Id.

121

ECF No. 75 at 26; see BLM0251.

122

See BLM0245.

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regarding the condition of the road, and the record does not suggest that BLM itself did not
verify or have knowledge of the condition of the gravel road.123 With respect to a rational
connection to safety, BLM observed that the proposed improvement would “provide a stable
road surface free of washouts, ruts, loose road base, as well as eliminating dust, which will
provide better visibility and air quality.”124 Additionally, BLM observed that the improvement
would bring this segment to the same surface standard as 50 of the 66 miles on the Burr Trail.
Although noting that specific standards for a “reasonable and necessary” determination were not
available, BLM stated:
it makes sense for a proposed improvement to be reasonable and necessary if
there is a need to undertake an activity on such a [right-of-way] to increase its
safety and/or comfort for the traveling public, enhance the traveling experience,
prevent a condition on it from worsening and/or having a detrimental effect on the
environment, and the proposed improvement appears to meet that need in a way
that is of appropriate scale and design, well-designed, and may not have adverse
impacts on the environment.125
The proposed project “would not change the alignment or increase the currently disturbed area of
the 7.5 mile segment of the Burr Trail,” and “may have positive benefits including a reduction in
fugitive dust . . . generated by motor vehicle use of the graveled 7.5 mile segment.”126
On the record before the court, BLM’s decision is not arbitrary and capricious. The
agency considered relevant evidence supporting its determination that Garfield County’s
proposed improvement was within the scope of its right-of-way.

Plaintiffs similarly point to BLM’s statement in response to a comment that it “evaluated the information
provided by Garfield County in connection with the proposed chip seal project, considered the relevant factors (as
identified in IM 2008-175), and determined that the project is reasonable and necessary and, thus, within the scope
of the County’s ROW for the Burr Trail.” BLM0274; see ECF No. 75 at 26–27. Despite Plaintiffs’ characterization
of this statement, it is not at all clear that BLM was indicating that it “had not gathered facts.” See ECF No. 75 at
26–27.
123

124

BLM0272.

125

BLM0245.

126

BLM0246.

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2. BLM’s Reliance on Improvements Within the Disturbed Area.
Plaintiffs argue that BLM’s reliance on Garfield County’s proposed improvements only to
the already disturbed area of the road was arbitrary.127 That is, they contend that the disturbed
area is irrelevant to consideration of the scope of a right-of-way and BLM was wrong to account
for it.
The scope of an R.S. 2477 right-of-way is that “reasonable and necessary for the type of
use to which the road has been put.”128 Under Utah law the width of a right-of-way is determined
considering “what was reasonable and necessary, under all the facts and circumstances, for the
uses which were made of the road.”129 The width of an R.S. 2477 right-of-way “is not limited to
the actual beaten path as of October 21, 1976.”130 Thus it may “be widened to meet the
exigencies of increased travel, including where necessary to ensure safety.”131
In making their “disturbed area” argument, Plaintiffs rely exclusively on cases involving
trespass in which the federal government contested the scope of a right-of-way.132 United States
v. Garfield County involved federal plaintiffs’ claims of trespass, among other things.133 Similar
claims were raised in SUWA v. BLM.134 To be sure, the width of a right-of-way is not fixed by the
disturbed area or roughed out boundaries of a road because easement holders are entitled to “use
certain land in a particular way” and not to “fee simple ownership of a defined parcel of

127

ECF No. 75 at 29.

128

Hodel, 848 F.2d at 1083 (citation and internal quotation marks omitted).

129

Lindsay Land & Livestock Co. v. Churnos, 75 Utah 384, 285 P. 646, 649 (1929).

130

Kane County, Utah, 772 F.3d at 1223 (citing Hodel, 848 F.2d at 1083).

131

Id.

132

ECF No. 75 at 29–30.

133

United States v. Garfield County, 122 F. Supp. 2d 1201, 1218 (D. Utah 2000).

134

S. Utah Wilderness All., 425 F.3d at 743.

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territory.”135 A county is not “free to construct such improvement as it sees fit, without prior
consultation with anyone” so long as it acts within the disturbed area.136 But these are not the
circumstances of this case. Here, Garfield County indicated, and BLM acknowledged, that the
proposed chip seal improvement was “confined within the existing disturbance” of the right-ofway.137 This information is not only relevant, but critical to BLM’s assessment of the potential
impact to lands over which it has management responsibilities (e.g., because “all chip seal
activities would be confined within the existing disturbance . . . there would be no reduction in
acreage and no direct effects to the WSA”).138 The record reflects that BLM considered the
disturbed area as part of a broader factual inquiry as to whether the proposed improvement was
within the scope of the right-of-way.139 In short, Plaintiffs’ claim that BLM simply relied on the
disturbed area to make its “reasonable and necessary” scope determination is reductive and
contradicted by the record.
3. BLM’s Reliance on Improvements Within the Disturbed Area.
Lastly, Plaintiffs argue that the BLM improperly changed its position, without
explanation, on the “reasonable and necessary” surface treatment of the 7.5-mile Stratton
Segment.140 The APA contains no requirement that an agency’s decisions be subject to a
heightened standard every time the agency does something new or different than it did

135

S. Utah Wilderness All., 425 F.3d at 747.

Garfield County, 122 F. Supp. 2d at 1242; S. Utah Wilderness All., 425 F.3d at 748 (“Just because a proposed
change falls within the scope of a right of way does not mean that it can be undertaken unilaterally.”).
136

137

BLM0254.

138

Id.

139

See BLM0246.

140

ECF No. 75 at 30.

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previously.141 However, an agency may not “depart from a prior policy sub silentio or simply
disregard rules that are still on the books.”142 Indeed, “[i]t would be arbitrary or capricious,” for
an agency to forego a reasoned explanation when “its new policy rests upon factual findings that
contradict those which underlay its prior policy; or when its prior policy has engendered serious
reliance interests that must be taken into account.”143
In support of their changed-policy argument, Plaintiffs point to a 1995 FONSI in which
BLM indicated that its preferred alternative from an EA addressing the length of the Burr Trail
“would retain chip-seal surface in those areas presently chip sealed” within Segment 3.144 The
Stratton Segment was not chip-sealed at that time. By implication, Plaintiffs contend, BLM
affirmatively determined that “keeping this 7.5 mile section of the Burr Trail graveled was
‘reasonable and necessary for public lands and will not cause unnecessary or undue degradation
of public lands or derogation of park/recreation area values.’”145 By finding the proposed chip
seal of the Stratton Segment reasonable and necessary in 2019, Plaintiffs assert that BLM was
required to explain why it “changed its mind.”146
The record provides sufficient information indicating that a quarter century later, things
had changed. Most of the rest of the Burr Trail had been chip sealed since 1995, so it was
desirable to bring this segment up to that standard.147 BLM accepted Garfield County’s

F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 514 (2009) (“We find no basis in the Administrative
Procedure Act or in our opinions for a requirement that all agency change be subjected to more searching review.
The Act mentions no such heightened standard.”).
141

142

Id. at 515.

143

Id. at 515–16.

144

ECF No. 75 at 31; see BLM0226.

145

ECF No. 75 at 31 (quoting BLM0225).

146

Id. at 30.

147

BLM0251.

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explanation that chip sealing the road would improve traveler safety and comfort and that
replacement gravel was becoming more scarce and expensive.148 There is no basis for arguing
that it was arbitrary and capricious for BLM to take that view in 2019 or to claim that NEPA
would be violated if BLM did not explain further.149 Accordingly, BLM was not required to
provide more explanation of its prior assessments.
In sum, BLM’s determination that the proposed improvements fell within the scope of
Garfield County’s right-of-way was not arbitrary and capricious. BLM considered the proposed
change, the safety rationale behind it, and accounted for historic uses. It therefore based its
decision on consideration of factors relevant to this type of decision.150 BLM’s assessment was
not counter to the evidence before the agency, and there is no basis to conclude that it made a
clear error of judgment.151
III.

BLM’s Environmental Assessment Complied with NEPA.

Plaintiffs argue that BLM’s EA failed to meet the requirements of NEPA.152 Specifically,
they contend that BLM failed to consider foreseeable indirect and cumulative impacts to adjacent
lands and resources from Garfield County’s proposed road improvement.
NEPA requires federal agencies to assess the environmental consequences of major
federal action.153 The Act has two aims, it “places upon an agency the obligation to consider

148

Id.

149

See F.C.C., 556 U.S. at 514–15.

See Dine Citizens Against Ruining Our Env’t v. Bernhardt, 923 F.3d 831, 839 (10th Cir. 2019) (stating that an
agency’s decision is arbitrary and capricious if it “(1) entirely failed to consider an important aspect of the problem,
(2) offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible
that it could not be ascribed to a difference in view or the product of agency expertise, (3) failed to base its decision
on consideration of the relevant factors, or (4) made a clear error of judgment” (citation and internal quotation marks
omitted)).
150

151

Id. (quoting New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 704 (10th Cir. 2009)).

152

ECF No. 75 at 32.

153

42 U.S.C. § 4321; 40 C.F.R. § 1501.1.

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every significant aspect of the environmental impact of a proposed action,” and “it ensures that
the agency will inform the public that it has indeed considered environmental concerns in its
decisionmaking process.”154 Agencies are required to “take a ‘hard look’ at the environmental
consequences before taking a major action.”155 “The role of the courts is simply to ensure that
the agency has adequately considered and disclosed the environmental impact of its actions and
that its decision is not arbitrary or capricious.”156 As opposed to substantive requirements, NEPA
“imposes procedural requirements intended to improve environmental impact information
available to agencies and the public.”157 In other words, “NEPA merely prohibits uninformed—
rather than unwise—agency action.”158
As the federal defendants point out, major federal action is not a possibility where the
agency has no “discretion to take the action in question.”159 Here, BLM has a role in the
consultation process. But ensuring the “construction proposal did not exceed the scope of the
R.S. 2477 right-of-way through public lands,” standing alone, does not constitute major federal
action.160 However, “when a proposed road improvement will impact a [wilderness study area]
the agency has the duty under FLPMA § 603(c) and the regulation to determine whether there are
less degrading alternatives, and it has the responsibility to impose an alternative it deems less
degrading upon the nonfederal actor.”161 “While this obligation is limited by BLM’s inability to

154

Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983) (citations and internal
quotation marks omitted).
155

Id.

156

Id. at 97–98.

157

New Mexico ex rel. Richardson, 565 F.3d at 704 (citing Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 371
(1989)).
158

Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989).

159

ECF No. 76 at 32.

160

Hodel, 848 F.2d at 1090.

161

Id. at 1090–91.

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deny the improvement altogether, it is sufficient . . . to invoke NEPA requirements.”162
Accordingly, BLM had an obligation here to assess impacts to the Mount Pennell WSA.163
Plaintiffs argue that BLM’s EA lacked assessment of indirect and cumulative impacts.164
Indirect effects can include those “related to induced changes in the pattern of land use . . . and
related effects on air and water and other natural systems, including ecosystems.”165 “Cumulative
impacts can result from individually minor but collectively significant actions taking place over a
period of time.”166
Here, BLM assessed the impacts to the Mount Pennell WSA from the proposed chip seal
improvement to the Stratton Segment.167 Because the graveled road already exists, BLM’s focus
was on the impact from temporary construction and the longer-term impact from a new road
surface. BLM noted that the road itself would not make its way into the WSA, but the road
construction would create other indirect impacts.168 Construction would generate some
temporary and variable noise that could be heard in the WSA.169 Although, noting it would be
difficult to quantify the noise impacts from traffic on the finished road, BLM concluded that
there may be more noise because vehicles would be travelling faster, but the smoother chip seal
surface would also be quieter than a washboard surface.170 Ultimately, BLM concluded that the
162

Id.

Id. at 1090; see also Kane County, Utah, 772 F.3d at 1224 (“[B]efore a holder makes ‘improvements’ to a rightof-way, the land management agency must be consulted to allow it an opportunity to determine if the improvement
is ‘reasonable and necessary’ and to ‘study potential effects, and if appropriate, to formulate alternatives that serve
to protect the lands.’” (quoting S. Utah Wilderness All., 425 F.3d at 748)).
163

164

ECF No. 75 at 33–36, 36–39.

165

40 C.F.R. § 1508.8(b).

166

Utahns for Better Transp., 305 F.3d at 1172–73.

167

See BLM0247–83.

168

BLM0254.

169

BLM0254–55.

170

BLM0255.

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“[c]hanges in road surface and noise along this 7.5 mile portion of the boundary are unlikely to
impact the more remote and rugged portions of the WSA that receive higher levels of use, such
as Mount Pennell, based on their distance from the Burr Trail.”171
With respect to dust, BLM determined that the construction would generate some but this
would occur over a limited duration.172 However, it concluded that “[o]ver the long run,
changing the surface of the 7.5 mile portion of the Burr Trail from gravel to a chip seal surface
will reduce the amount of dust generated by vehicles, including the height of dust plumes.”173
The sealed road surface would no longer be a source of dust, but there may be particulates
deposited from tire wear, exhaust, etc.”174 The dust generated on the road, primarily from
construction, could be seen from parts of the WSA impacting opportunities for solitude and
deposition of dust could impact nearby vegetation.175 However, dust deposition within the WSA
would be limited depending upon many factors including precipitation and wind.176
The impacted view from the WSA would include heavy equipment during construction
and new materials, generally contrasting new colors and textures.177 The road surface could be
finished with a non-native gravel, which might stand out more than locally-sourced gravel.178
But BLM determined that the visual impact would be minimal because there were few
observation points in the Mount Pennell WSA. “In addition, portions of the WSA adjacent to the

171

Id.

172

Id.

173

Id.

174

BLM0255–56.

175

BLM0255.

176

Id.

177

BLM0256.

178

Id.

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project area are relatively flat and receive limited use when compared to other portions of the
WSA that include more prominent features but are located further away from the project area.”179
Plaintiffs also argue that BLM failed to consider the indirect and cumulative impacts
from increased traffic and visitation to the Mount Pennell WSA.180 In support, Plaintiffs cite
Hodel I for the proposition that “improving the road surface . . . would cause a number of
foreseeable impacts requiring NEPA analysis, among them ‘large increases in future traffic.’”181
But while Hodel involved the Burr Trail, the project there was far greater in scope than the one
here: “The project in this case runs ten miles along one WSA and twelve miles along another,
with some sections affecting both. It involves realignments, widening, considerable blasting, a
significant improvement in the quality of the road surface, and large increases in future
traffic.”182 A statement about future traffic made 33 years ago involving a much larger and more
significant project does not support Plaintiffs’ argument here.183 Plaintiffs also cite Kane County,
Utah.184 But Kane County does not involve NEPA in any respect, let alone consider whether an
agency’s decision was arbitrary and capricious for failure to consider possible increased traffic
and visitation.185 In short, neither case helps Plaintiffs here.

179

BLM0256.

180

ECF No. 75 at 33–35.

181

ECF No. 75 at 33 (quoting Hodel, 848 F.2d at 1092).

182

Hodel, 848 F.2d at 1092..

183

The project here involved resurfacing a much shorter segment of the road and did not involve realignments,
blasting, or widening of the road.
184

ECF No. 75 at 33–34; see generally Kane County, Utah v. United States, 928 F.3d 877, 889 (10th Cir. 2019),
cert. denied sub nom. United States v. Kane County, UT, No. 20-96, 2021 WL 231653 (U.S. Jan. 25, 2021), and
cert. denied sub nom. Kane County, UT v. United States, No. 20-82, 2021 WL 231976 (U.S. Jan. 25, 2021).
The court in Kane County reviewed “SUWA’s challenge to the district court’s denial of its second motion to
intervene.” Kane County, 928 F.3d at 882. The court relatedly addressed Kane County’s argument that SUWA
lacked constitutional standing. Id. at 886.
185

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Plaintiffs are correct that traffic is only briefly mentioned and then only in the
Interdisciplinary Checklist:
Once construction is complete, traffic to the area is expected to stay relatively the
same with the possibility of small increases in tourism potential. Tourism to the
Capitol Reef National Park has grown every year according to NPS visitation
figures posted annually but this area is well off the main travel corridor and this
project is not expected to draw a large amount of visitors to this particular area.186
Plaintiffs argue that this is insufficient and that traffic discussions in a 1993 EA and a
reference to traffic and public use issues raised by the National Park Service in 2009 and 2010
show that more was required.187 On this record, the court finds that it would be speculative to
rely on comments made between a decade and a quarter century ago to find that BLM violated
NEPA. Additionally, the traffic and visitation references identified in the 2009 and 2010 National
Park Service letters are generally not illuminating.188 Also, the draft 2011 EA, which the
aforementioned letters were meant to influence, considered and rejected the traffic and use
concerns.189 Finally, the record does not contain any concerns from the National Park Service in
2019. The court will not find BLM in violation of NEPA for disagreeing with another agency’s
views expressed a decade earlier, particularly when the agency did not reiterate those views. The
court agrees with Plaintiffs that it would have been preferable for BLM to elaborate on its

186

BLM0264.

187

ECF No. 75 at 33–35; ECF No. 80 at 20–21.

BLM0311 (“Changes in traffic and public use may occur . . . and could obligate the NPS to alter the manner in
which we manage these resources”); BLM318 (noting that 30 years earlier there had been statements about potential
“change[s] in tourist use patterns [and] overuse of existing recreational facilities,” among other things).
188

BLM0860 (“Current traffic use/visitation patterns are not anticipated to change as a result of the proposed
project”); BLM861 (“we do not have any solid evidence of increased traffic after over a decade of the chip sealing
of 76 percent of the Burr Trail and we have concurring conclusions to that effect from CRNP’s [Capitol Reef
National Park] own documents and data”).
189

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Case 2:19-cv-00297-DBB Document 82 Filed 03/31/21 PageID.2435 Page 29 of 29

finding that traffic is expected to stay “relatively the same,”190 but the court’s review is “highly
deferential”191 and it “cannot substitute its judgment for that of the agency.”192
Considering the totality of the evidence, the agency’s decision to forego an extended
discussion on traffic volume and visitation to the area in its EA was not arbitrary and capricious.
The limited evidence suggested minimal change to the use of the road and contrary statements
were speculative or conclusory.
In these assessments, BLM adequately considered the reasonably foreseeable impacts to
the Mount Pennell WSA from the road improvement over the Stratton Segment. It acknowledged
some direct and indirect impacts would occur, but determined they would be minimal, temporary,
or in some cases potentially beneficial.193 Though the assessment was not extensive, neither was
the project. On this record, this satisfies the “hard look” requirement under NEPA.194
Consequently, BLM’s decision was not arbitrary and capricious.
Signed March 31, 2021.
BY THE COURT

________________________________________
David Barlow
United States District Judge

190

See ECF No. 75 at 36.

191

Citizens’ Comm. to Save Our Canyons, 513 F.3d at 1176 (citation and internal quotation mark omitted).

192

Utahns for Better Transp., 305 F.3d at 1164 (citation omitted).

193

See BLM0271–73.

194

BLM also discussed some of the mitigation measures proposed by Garfield County in construction of the
improvement. These would further reduce the impacts from the chip sealing process and limit or eliminate any
impact outside of the existing road boundaries. See BLM0282–83.

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