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Ctr. for Biological Diversity v. Bureau of Land Management

United States District Court, N.D. California

April 3, 2014

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs,
v.
BUREAU OF LAND MANAGEMENT, et al., Defendants, and AMERICAN SAND ASSOCIATION, et al, Defendant-Intervenors

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[Copyrighted Material Omitted]

Page 1139

For Center For Biological Diversity, Plaintiff: Brendan R. Cummings, LEAD ATTORNEY, Center for Biological Diversity, Joshua Tree, CA; Deborah Ann Sivas, LEAD ATTORNEY, Environmental Law Clinic, Mills Legal Clinic at Stanford Law School, Stanford, CA; Lisa T. Belenky, Center for Biological Diversity, San Francisco, CA; Sarah Uhlemann, PRO HAC VICE, Center for Biological Diversity, Seattle, WA; Timothy J Ream, San Francisco, CA.

For Sierra Club, Public Employees for Environmental Responsibility, Desert Survivors, Plaintiffs: Brendan R. Cummings, LEAD ATTORNEY, Center for Biological Diversity, Joshua Tree, CA; Deborah Ann Sivas, LEAD ATTORNEY, Environmental Law Clinic, Mills Legal Clinic at Stanford Law School, Stanford, CA; Sarah Uhlemann, PRO HAC VICE, Center for Biological Diversity, Seattle, WA; Timothy J Ream, San Francisco, CA.

For Bureau of Land Management, United States Fish & Wildlife Service, Defendants: Kevin William McArdle, LEAD ATTORNEY, Michael Richard Eitel, United States Department of Justice, Environment & Natural Resources Division, Wildlife & Marine Resources Section, Washington, DC; Lisa Lynne Russell, Wildlife & Marine Resources Section, Washington, DC.

For BlueRibbon Coalition, California Association of 4 Wheel Drive Clubs, San Diego Off Road Coalition, Desert Vipers Motorcycle Club, High Desert Multiple Use Coalition, American Motorcycle Association District 37, Off-Road Business Association, California Off-Road Vehicle Association, American Sand Association, Movants: David P. Hubbard , Esq., Gatzke Dillon & Ballance LLP, Carlsbad, CA; Paul Andrew Turcke, Moore Smith Buxton & Turcke, Boise, ID.

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ORDER RE: CROSS MOTIONS FOR SUMMARY JUDGMENT

SUSAN ILLSTON, United States District Judge.

On February 28, 2014, the Court held a hearing on the parties' cross-motions for summary judgment. For the reasons set forth below, the parties' cross-motions for summary judgment are GRANTED IN PART and DENIED IN PART.

BACKGROUND

This dispute marks the continuation of plaintiffs' challenge to the administration by the Bureau of Land Management (" BLM" ) of the Imperial Sand Dunes Recreation Area (" ISDRA" or " Dunes" ), and the biological opinions related to the Dunes prepared by the U.S. Fish and Wildlife Service (" FWS" ) in accordance with the Endangered Species Act (" ESA" ). The lengthy factual and procedural history of FWS and BLM's management actions

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related to the Dunes and plaintiffs' prior claims is set forth in this Court's March 14, 2006 Order granting in part and denying in part each side's motion for summary judgment. See Ctr. for Biological Diversity (" CBD" ) v. BLM, 422 F.Supp.2d 1115 (N.D. Cal. 2006).[1]

In that decision, the Court held that FWS's 2005 biological opinion (" BiOp" ) for the 2003 ISDRA Recreation Area Management Plan (the " 2003 RAMP" ) violated the Endangered Species Act in various respects with regard to two listed species, the Peirson's milk-vetch (" PMV" ) and the desert tortoise. Id. at 1121-22. The Court also held that FWS unlawfully excluded certain areas when it designated critical habitat for the PMV in 2004. Id. at 1122. Finally, the Court held that the BLM violated the National Environmental Policy Act by failing to consider interim off-highway vehicle (" OHV" ) closures [2] when it considered alternatives in the Environmental Impact Statement for the 2003 RAMP, and by failing to adequately examine the impact of the 2003 RAMP on endemic invertebrates. Id.

In response to the Court's 2006 opinion, in 2008 FWS issued a new critical habitat designation for the PMV. 73 Fed. Reg. 8748 (Feb. 14, 2008). Plaintiffs and other groups unsuccessfully challenged the new critical habitat designation. See Maddalena v. FWS, No. 3:08-cv-02292-H-AJB, 2010 WL 9915002 (S.D. Cal. Aug. 5, 2010). In June 2013, the BLM also issued a new Record of Decision adopting a new Recreation Area Management Plan (the " 2013 RAMP" ) for the Dunes. Under the 2013 RAMP, the 26,000 acre North Algodones Dunes Wilderness remains closed to OHVs, as will an additional 9,261 acres of PMV critical habitat. The remainder of the Dunes -- over 127,000 acres -- will be opened to OHV use. Prior to issuing the Record of Decision, the BLM prepared a new Environmental Impact Statement (the " 2013 EIS" ) analyzing the 2013 RAMP. Finally, after engaging in consultation pursuant to Section 7(a)(2) of the ESA, in November 2012, FWS issued a new BiOp concluding that implementing the 2013 RAMP is not likely to jeopardize the continued existence of the PMV or the desert tortoise.

On September 16, 2013, plaintiffs filed a third amended complaint challenging the 2013 RAMP, the 2013 EIS and 2012 BiOp under the Endangered Species Act (" ESA" ), 16 U.S.C. § § 1531 et seq., the National Environmental Policy Act (" NEPA" ), 42 U.S.C. § § 4321 et seq., the Federal Land Policy and Management Act

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of 1976 (" FLPMA" ), 43 U.S.C. § § 1701-1785, and the Administrative Procedure Act (" APA" ), 5 U.S.C. § 706 et seq.. Plaintiffs allege that: (1) the 2012 BiOp is deficient because it does not include an Incidental Take Statement for the PMV; (2) FWS has unreasonably delayed issuance of a recovery plan for the PMV under Section 4(f) of the Endangered Species Act.; (3) the 2013 EIS violates the National Environmental Policy Act (" NEPA" ) by failing to take a hard look at impacts on wilderness areas; and (4) BLM violated NEPA, FLPMA and the Clean Air Act by failing to properly evaluate the alleged impacts of the 2013 RAMP on air quality.[3]

Plaintiffs generally allege that the PMV is particularly threatened by OHV recreational use in the Dunes, and that the 2013 management plan for the Dunes does not contain sufficient safeguards to ensure against jeopardizing the continued existence of these species. Defendants are the Bureau of Land Management (" BLM" ), which manages the ISDRA, and the U.S. Fish and Wildlife Service (" FWS" or " Service" ), which consults with the BLM and is required to evaluate BLM actions that affect the Peirson's milk-vetch. Defendant-intervenors are a number of organizations representing OHV recreationists.

LEGAL STANDARD

" Neither the ESA nor NEPA supply a separate standard for our review, so we review claims under these Acts under the standards of the APA." San Luis & Delta-Mendota Water Authority v. Jewell, 747 F.3d 581, 2014 WL 975130, at *9 (9th Cir. Mar. 13, 2014). Pursuant to Section 706 of the Administrative Procedure Act (" APA" ), 5 U.S.C. § 701 et seq., the court " shall" set aside any agency decision that the Court finds is " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The APA precludes a trial court reviewing an agency action from considering any evidence outside of the administrative record available to the agency at the time of the challenged decision. See 5 U.S.C. § 706(2)(E); Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985); Havasupai Tribe v. Robertson, 943 F.2d 32, 34 (9th Cir. 1991). " Because this is a record review case, we may direct that summary judgment be granted to either party based upon our de novo review of the administrative record." Oregon Natural Desert Ass'n v. Bureau of Land Management, 625 F.3d 1092, 1108 (9th Cir. 2010); Riddell v. Unum Life Ins. Co. of Am., 457 F.3d 861, 864 (8th Cir. 2006) (explaining that judgment on the administrative record " is a form of summary judgment" ).

The Court must determine whether the agency decision " was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The Supreme Court has explained that an agency action is arbitrary and capricious if " the agency has relied on factors

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which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, 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." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). " Although our inquiry must be thorough, the standard of review is highly deferential; the agency's decision is 'entitled to a presumption of regularity,' and we may not substitute our judgment for that of the agency." San Luis & Delta-Mendota Water Authority, F.3d , 2014 WL 975130, at *9 (internal citation omitted). " Where the agency has relied on 'relevant evidence [such that] a reasonable mind might accept as adequate to support a conclusion,' its decision is supported by 'substantial evidence.'" Id. (internal citation omitted). " Even " [i]f the evidence is susceptible of more than one rational interpretation, [the court] must uphold [the agency's] findings." Id. (internal citation omitted).

DISCUSSION

I. Endangered Species Act - Incidental Take Statement

For any federal action that may affect a threatened or endangered species (or its habitat), Congress has required by statute that the agency contemplating the action (here the BLM) must consult pursuant to Section 7(a) of the ESA with the consulting agency (here the FWS) to " insure" that the federal action " is not likely to [1] jeopardize the continued existence of any endangered species or threatened species or [2] result in the destruction or adverse modification" of the designated critical habitat of such species. 16 U.S.C. § 1536(a)(2). After the agencies engage in the consultation process, the consulting agency issues a BiOp.

Under Section 7(b)(4) of the ESA, " [t]he FWS must issue an Incidental Take Statement if the BiOp concludes no jeopardy to listed species or adverse modification of critical habitat will result from the proposed action, but the action is likely to result in incidental takings." Oregon Natural Resources Council v. Allen, 476 F.3d 1031, 1036 (9th Cir. 2007) (citing 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i); and Ariz. Cattle Growers' Ass'n, 273 F.3d 1229, 1242 (9th Cir. 2001)). " Both the BiOp and the Incidental Take Statement must be formulated by the FWS during the formal consultation process; indeed, the regulations specifically require the FWS to provide the Incidental Take Statement 'with the biological opinion.'" Id. (quoting 50 C.F.R. § 402.14(g), (i)(1)). Incidental take in compliance with the terms and conditions in the ITS " shall not be considered to be a prohibited taking of the species concerned." 16 U.S.C. § 1536(o)(2). Section 7 consultation must be reinitiated when the amount or extent of taking specified in the ITS is exceeded, as well as when new information reveals impacts of the action on listed species that were not previously considered or when the agency action is changed in a way that causes impacts on listed species that were not previously considered. See 50 C.F.R. § 402.16(a)-(c).

Section 7(b)(4) provides,

(b) Opinion of Secretary
. . .
(4) If after consultation under subsection (a)(2)[4] of this section, the Secretary concludes that--

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(A) the agency action will not violate such subsection, or offers reasonable and prudent alternatives which the Secretary believes would not violate such subsection;
(B) the taking of an endangered species or a threatened species incidental to the agency action will not violate such subsection; and
(C) if an endangered species or threatened species of a marine mammal is involved, the taking is authorized pursuant to section 1371(a)(5) of this title; the Secretary shall provide the Federal agency and the applicant concerned, if any, with a written statement that--
(i) specifies the impact of such incidental taking on the species,
(ii) specifies those reasonable and prudent measures that the Secretary considers necessary or appropriate to minimize such impact,
(iii) in the case of marine mammals, specifies those measures that are necessary to comply with section 1371(a)(5) of this title with regard to such taking, and
(iv) sets forth the terms and conditions (including, but not limited to, reporting requirements) that must be complied with by the Federal agency or applicant (if any), or both, to implement the measures specified under clauses (ii) and (iii).

16 U.S.C. § 1536(b)(4).

The 2012 BiOp does not contain an ITS for the PMV. Plaintiffs contend that FWS was required to prepare an ITS for the PMV, while defendants contend that an ITS is only required for listed fish and wildlife, not for listed plants. The parties' dispute involves the interplay of Sections 7 and 9 of the ESA. Section 9 of the ESA and its implementing regulations prohibit the " take" of " any endangered species of fish or wildlife," and provides separate protections for endangered plants. See 16 U.S.C. § 1538(a)(1); 50 C.F.R. § 17.31. Section 9, titled " Prohibited Acts," states,

§ 1538. Prohibited acts

(a) Generally
(1) Except as provided in sections 1535(g)(2) and 1539 of this title, with respect to any endangered species of fish or wildlife listed pursuant to section 1533 of this title it is unlawful for any person subject to the jurisdiction of the United States to--
(A) import any such species into, or export any such species from the United States;
(B) take any such species within the United States or the territorial sea of the United States;
(C) take any such species upon the high seas;
(D) possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such species taken in violation of subparagraphs (B) and (C);
(E) deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity, any such species;

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(F) sell or offer for sale in interstate or foreign commerce any ...

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