Onda v. Jeff Rose , 921 F.3d 1185 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OREGON NATURAL DESERT Nos. 18-35258
ASSOCIATION, 18-35282
Plaintiff-Appellant/
Cross-Appellee, D.C. No.
3:09-cv-00369-PK
v.
JEFF ROSE, Burns District OPINION
Manager, BLM; U.S. BUREAU OF
LAND MANAGEMENT; INTERIOR
BOARD OF LAND APPEALS;
RHONDA KARGES, Field Manager,
Andrews Resource Area, BLM,
Defendants-Appellees,
and
HARNEY COUNTY,
Intervenor-Defendant-Appellee/
Cross-Appellant.
Appeals from the United States District Court
for the District of Oregon
Paul J. Papak II, Magistrate Judge, Presiding
Argued and Submitted March 8, 2019
Portland, Oregon
2 ONDA V. ROSE
Filed April 25, 2019
Before: Susan P. Graber and Marsha S. Berzon, Circuit
Judges, and Eduardo C. Robreno,* District Judge.
Opinion by Judge Graber
SUMMARY**
Environmental Law
The panel affirmed in part, and vacated in part, the district
court’s judgment upholding the Bureau of Land
Management’s decisions about the route network for
motorized vehicles in the Steens Mountain Cooperative
Management and Protection Area.
The Bureau issued two plans: the Steens Mountain Travel
Management Plan (“Travel Plan”) and the Steens Mountain
Comprehensive Recreation Plan (“Recreation Plan”). The
Oregon Natural Desert Association challenged the Recreation
Plan, and the Interior Board of Land Appeals (“Board”)
approval of the Travel Plan, under the National
Environmental Policy Act of 1969 (“NEPA”), the Federal
Land Policy Management Act of 1976, and the Steens
*
The Honorable Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ONDA V. ROSE 3
Mountain Cooperative Management and Protection Act of
2000. Haney County, Oregon intervened.
The panel held that the Bureau satisfied its obligation to
consult the Steens Mountain Advisory Council before issuing
the Recreation Plan, and therefore, its action was not arbitrary
and capricious in that respect. The panel also held that even
if the degree or mode of consultation was insufficient, any
error was harmless to Harney County.
The panel held that the Board acted arbitrarily and
capriciously by changing its definition of “roads and trials”
without providing a reasoned explanation for the change. The
panel vacated the Board’s approval of the Travel Plan, and
remanded. The panel left it to the agency, in the first
instance, to explain its change in position or to craft new
definitions and explain them.
The panel held that the Board acted arbitrarily and
capriciously by affirming the Bureau’s issuance of the Travel
Plan because the Bureau failed to establish the baseline
environmental conditions necessary for a procedurally
adequate assessment of the Travel Plan’s environmental
impacts. The panel vacated the Board’s approval of the
Travel Plan and remanded with instructions for the Board to
remand the Travel Plan to the Bureau for reconsideration.
Because the panel concluded that the Travel Plan was
procedurally deficient under NEPA, it did not reach the
substantive challenges to the Travel Plan under the other Acts
and did not decide whether the Bureau must prepare an
environmental impact statement for the Travel Plan.
The panel held that the Bureau acted arbitrarily and
capriciously in issuing the Recreation Plan because the
4 ONDA V. ROSE
Bureau failed to establish the baseline conditions necessary
for it to consider the significant environmental impacts to the
Steens Mountain Area. The panel vacated the Recreation
Plan and remanded.
The panel vacated the cost award to the Bureau.
COUNSEL
Peter M. Lacy (argued), Oregon Natural Desert Association,
Portland, Oregon; Thomas C. Buchele, Earthrise Law Center,
Portland, Oregon; David H. Becker, Law Office of David H.
Becker, Portland, Oregon; for Plaintiff-Appellant/Cross-
Appellee.
Dominic M. Carollo (argued), Yockim Carollo LLP,
Roseburg, Oregon, for Intervenor-Defendant-Appellee/Cross-
Appellant.
Sean E. Martin (argued), Assistant United States Attorney;
Kelly A. Zusman, Appellate Chief; Billy J. Williams, United
States Attorney; United States Attorney’s Office, Portland,
Oregon; for Defendants-Appellees.
ONDA V. ROSE 5
OPINION
GRABER, Circuit Judge:
This litigation arose from the Bureau of Land
Management’s decisions about the route network for
motorized vehicles in the Steens Mountain Cooperative
Management and Protection Area (“Steens Mountain Area”).
The Bureau issued two plans: the Steens Mountain Travel
Management Plan (“Travel Plan”) and the Steens Mountain
Comprehensive Recreation Plan (“Recreation Plan”).
Plaintiff Oregon Natural Desert Association (“ONDA”)
challenged the Recreation Plan, and the Interior Board of
Land Appeals’ (“Board”) approval of the Travel Plan, under
the National Environmental Policy Act of 1969 (“NEPA”),
the Federal Land Policy Management Act of 1976
(“FLPMA”), and the Steens Mountain Cooperative
Management and Protection Act of 2000 (“Steens Act”).
Harney County intervened to defend the Board’s approval of
the Travel Plan, but also cross-claimed against the Bureau to
challenge the Recreation Plan as arbitrary and capricious.
The district court upheld both agency actions. Reviewing de
novo, San Luis & Delta-Mendota Water Auth. v. Locke,
776 F.3d 971, 991 (9th Cir. 2014), we affirm in part, vacate
in part, and remand.
A. Consultation with the Advisory Council
The Bureau satisfied its obligation to consult the Steens
Mountain Advisory Council before issuing the Recreation
Plan, so its action was not arbitrary and capricious in that
respect. 5 U.S.C. § 706(2)(A). Although the Bureau must
make any decision “to permanently close an existing road” or
“restrict the access of motorized or mechanized vehicles on
6 ONDA V. ROSE
certain roads” in the Steens Mountain Area “in consultation
with the advisory council,” 16 U.S.C. § 460nnn-22(c), the
Steens Act does not specify how the Bureau must consult
with the Advisory Council. The Advisory Council has no
power to make management decisions for the Steens
Mountain Area or to veto the Bureau’s management
decisions. See id. § 460nnn-51(a) (establishing the Advisory
Council solely “to advise” the Secretary of the Interior in
managing the Steens Mountain Area).
Here, the Bureau opened the public comment period for
the revised Recreation Plan Environmental Assessment
(“EA”) on January 12, 2015. The Bureau formally briefed
the Advisory Council on the Recreation Plan about two
weeks later, during meetings in which the Bureau gave
Advisory Council members copies of each route analysis and
discussed the project. At the end of the meetings, the
Advisory Council suggested that the Bureau should “use the
information” from the meetings and act as it saw fit. In short,
the Bureau adequately consulted the Advisory Council.
Even if the degree or mode of consultation were
insufficient, any error was harmless to the County. The
County responded to the revised EA months before the
Bureau issued the final Recreation Plan decision and Finding
of No Significant Impact (“FONSI”) in April 2015. The
County cannot explain how the Bureau’s purported failure to
consult the Advisory Council more extensively “caused the
agency not to be fully aware of the environmental
consequences of the proposed action, thereby precluding
informed decisionmaking and public participation, or
otherwise materially affected the substance of the agency’s
decision.” Idaho Wool Growers Ass’n v. Vilsack, 816 F.3d
1095, 1104 (9th Cir. 2016).
ONDA V. ROSE 7
B. Definition of “Roads and Trails”
The Board acted arbitrarily and capriciously by changing
its definition of “roads and trails” without providing a
reasoned explanation for the change. Encino Motorcars, LLC
v. Navarro, 136 S. Ct. 2117, 2125–26 (2016). The Steens Act
prohibits the use of motorized vehicles “off road,” but also
authorizes the use of motorized vehicles on “roads and trails,”
without defining those terms. 16 U.S.C. § 460nnn-22(b)(1).
The Board reconciled this seeming contradiction “by
concluding that since the statute clearly meant to allow [the
Bureau] to designate roads and trails as open to motorized
travel, the prohibition against motorized off-road travel
logically can only mean that motorized travel that does not
occur on either a road or a trail is prohibited.”1 Although the
Steens Act does not use the term “route,” the Board used that
more generic term throughout its decisions to encompass
“roads and trails.”
In its 2009 decision on the Travel Plan, the Board decided
that there exists “inherent incongruity in determining that
routes are ‘obscure,’ or difficult or impossible to identify on
the ground, and concluding that opening them to motorized
use is consistent with the Steens Act.” In other words, the
Board determined that a route that is “difficult or impossible
to identify on the ground” is neither a road nor a trail under
the Steens Act. The Board thus reversed the Bureau’s
decision to allow motorized travel on 36 miles of Obscure
Routes.
But in its 2014 remand decision on the Travel Plan, the
Board reversed course and sua sponte overturned its own
1
ONDA agrees with this interpretation.
8 ONDA V. ROSE
decision to close the Obscure Routes. For the first time, the
Board defined “route” to mean something that “existed as a
matter of record” in October 2000—when Congress enacted
the Steens Act2—“and that might again be used in the future,
despite a present difficulty in physically tracing [it] on the
ground.” The “record” to which the Board referred included
sources such as hand-drawn maps and testimony from local
ranchers and grazing permittees, whether those maps or
testimony existed in 2000 or only later.
Of course, agencies may change their policies over time.
But an agency must “at least ‘display awareness that it is
changing position’ and ‘show that there are good reasons for
the new policy.’” Encino Motorcars, 136 S. Ct. at 2126
(quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502,
515 (2009)). The Board failed to do that. The Board did not
explain, for example, what led it to alter its earlier decision or
why the new approach was more consistent with the text of
the Steens Act. It also did not explain why it could rely on a
“record” that was created after the effective dates of both the
Steens Act and the FLPMA and that consisted largely of
representations made by interested local parties. See id.
at 2127 (discussing how the agency might have justified its
choice). Because the Board acted arbitrarily and capriciously,
we vacate its approval of the Travel Plan and remand.
Because the Steens Act leaves room for agency discretion
in this area, such that the Board or the Bureau could redefine
“road” or “trail” on remand even if we endeavored to define
those terms first, Nat’l Cable & Telecomms. Ass’n v. Brand
2
Or, for routes within the Steens Mountain Wilderness, that existed
as a matter of record in October 1976, when Congress enacted the
FLPMA.
ONDA V. ROSE 9
X Internet Servs., 545 U.S. 967, 982 (2005), we do not define
the terms here.3 We leave it to the agency, in the first
instance, to explain its change in position or to craft new
definitions and explain them.
C. The Travel Plan
The Board also acted arbitrarily and capriciously by
affirming the Bureau’s issuance of the Travel Plan. Even
assuming that the Bureau properly inventoried all “roads and
trails” in the Steens Mountain Area, the Bureau failed to
establish the baseline environmental conditions necessary for
a procedurally adequate assessment of the Travel Plan’s
environmental impacts. “Without establishing the baseline
conditions” before a project begins, “there is simply no way
to determine what effect the project will have on the
environment and, consequently, no way to comply with
NEPA.” Great Basin Res. Watch v. BLM, 844 F.3d 1095,
1101 (9th Cir. 2016) (brackets omitted) (quoting Half Moon
Bay Fishermans’ Mktg. Ass’n v. Carlucci, 857 F.2d 505, 510
(9th Cir. 1988)).
Nothing in the Travel Plan EA establishes the physical
condition of the routes, such as whether they are overgrown
with vegetation or have become impassable in certain spots.
Indeed, the Bureau acknowledged that it included some
routes in the inventory even though its staff could not find
those routes on the ground. Despite that lack of information,
the Travel Plan EA authorized most routes for “Level 2"
3
We note, however, that the Bureau referred to the routes in the
Travel Plan and the Recreation Plan as both “routes” and “roads.” On
remand, it would be prudent for the Bureau to clarify whether all the
routes are roads, or whether some routes are trails.
10 ONDA V. ROSE
maintenance, which involves mechanically grading a route
and “brushing” (removing) roadside vegetation. Such
“routine” maintenance can dramatically change a lightly used
route and its surroundings. Thus, without understanding the
actual condition of the routes on the ground, the Bureau could
not properly assess the environmental impact of allowing
motorized travel on more than 500 miles of routes, or of
carrying out mechanical maintenance on those routes. The
Bureau “had a duty to assess, in some reasonable way, the
actual baseline conditions” in the Steens Mountain Area, Or.
Nat. Desert Ass’n v. Jewell, 840 F.3d 562, 569 (9th Cir.
2016), but it failed to perform that duty.
NEPA does not require the Bureau to accept ONDA’s
assessment of the environmental consequences of the Travel
Plan. It does, however, require the Bureau to “articulate[] a
rational connection between the facts found and the choice
made,” instead of relying on an ipse dixit assessment of
environmental impacts over a contrary expert opinion and
data. Pac. Coast Fed’n of Fishermen’s Ass’ns v. Blank,
693 F.3d 1084, 1091 (9th Cir. 2012) (internal quotation marks
omitted). Ordinarily, we must defer to an agency’s technical
expertise and reasonable choice of methodology, because
NEPA “does not require adherence to a particular analytic
protocol.” Or. Nat. Desert Ass’n v. BLM (“ONDA v. BLM”),
625 F.3d 1092, 1121 (9th Cir. 2010) (quoting Ass’n of Pub.
Agency Customers, Inc. v. Bonneville Power Admin.,
126 F.3d 1158, 1188 (9th Cir. 1997)). And an agency need
not measure “actual baseline conditions in every situation—it
may estimate baseline conditions using data from a similar
area, computer modeling, or some other reasonable method.”
Great Basin, 844 F.3d at 1101. But here, the Bureau did not
use any method or estimate—aside from making generic
statements about roads in the Steens Mountain Area—to
ONDA V. ROSE 11
establish baseline conditions. We “cannot defer to a void.”
ONDA v. BLM, 625 F.3d at 1121.
The EA itself “contains virtually no references to any
material in support of or in opposition to its conclusions,”
even though the EA “is where the [Bureau’s] defense of its
position must be found.”4 Blue Mountains Biodiversity
Project v. Blackwood, 161 F.3d 1208, 1214 (9th Cir. 1998)
(citing 40 C.F.R. § 1508.9(a)). The EA and the previous
Environmental Impact Statement (“EIS”) to which it is tiered
contain only a cursory analysis of the project’s impact on
noteworthy aspects of the Steens Mountain Area, such as the
sage grouse population and the spread of noxious weed
infestations. We have warned that “general statements about
‘possible’ effects and ‘some risk’ do not constitute a ‘hard
look’ absent a justification” for why an agency could not
supply more “definitive information.” Id. at 1213 (internal
quotation marks omitted). The EA and the EIS lack any such
justification. Accordingly, we vacate the Board’s approval of
the Travel Plan, and remand with instructions for the Board
to remand the Travel Plan to the Bureau for reconsideration.
Because we conclude that the Travel Plan is procedurally
deficient under NEPA, we do not reach ONDA’s substantive
challenges to the Travel Plan under the Steens Act and the
4
To the extent that the Board relied on “Route Analysis Forms” that
the Bureau submitted on remand, that reliance was arbitrary and
capricious. Whatever the forms’ contents, the Bureau created them years
after it released the Travel Plan EA and FONSI in 2007. Thus, the public
never saw the forms and never had an opportunity to comment on them,
“frustrating NEPA’s goal of allowing the public the opportunity to play a
role in the decisionmaking process.” Great Basin, 844 F.3d at 1104
(internal quotation marks and alteration omitted).
12 ONDA V. ROSE
FLPMA. Likewise, we do not decide whether the Bureau
must prepare an EIS for the Travel Plan.5
Having addressed the problems we have
identified, the [Bureau] may decide to make
different choices. NEPA is not a paper
exercise, and new analyses may point in new
directions. As a result, although ONDA also
raises concerns regarding alleged substantive
and procedural flaws within the Plan, we do
not reach those issues today. The problems it
identifies may never arise once the [Bureau]
has had a chance to see the choices before it
with fresh eyes.
ONDA v. BLM, 625 F.3d at 1124.
D. Recreation Plan
The Bureau acted arbitrarily and capriciously in issuing
the Recreation Plan. Here, too, the Bureau failed to establish
5
That said, we disagree with the Bureau and the County that an EIS
is unnecessary because the Travel Plan simply maintained the “status
quo.” Not so. The Travel Plan added about 70 miles of motorized routes
to the transportation network in the Steens Mountain Area and closed
1.23 miles of routes to motorized access. By contrast, “status quo” cases
involve the “mere continued operation of a facility.” See Burbank Anti-
Noise Grp. v. Goldschmidt, 623 F.2d 115, 116 (9th Cir. 1980) (per curiam)
(holding that the FAA did not need to prepare an EIS before providing
financial assistance that would allow an entity to purchase and continue
operating an existing airport); see also Upper Snake River Chapter of
Trout Unlimited v. Hodel, 921 F.2d 232, 235 (9th Cir. 1990) (holding that
the Bureau of Reclamation did not need to prepare an EIS before adjusting
the flow of water from a dam, because the agency had been occasionally
adjusting the water flow “for upwards of ten years”).
ONDA V. ROSE 13
the baseline conditions necessary for it to “carefully consider
information about significant environmental impacts” to the
Steens Mountain Area. N. Plains Res. Council, Inc. v.
Surface Transp. Bd., 668 F.3d 1067, 1085 (9th Cir. 2011).
This time around, the Bureau made Route Analysis Forms
and aerial photographs available during the comment period.
But neither the photographs nor the forms themselves reveal
any details about the condition of the Obscure Routes. Each
form starts with the following prompt: “Please describe the
general setting of the area including precipitation and
vegetation and compare this data to an average precipitation
year. Provide any other pertinent information.” Yet, even
though the Bureau seemingly recognized the importance of
establishing baseline conditions (such as the vegetation on
each route), the completed forms fail to provide any details
responsive to the prompt. Without establishing baseline
conditions for the Obscure Routes, the Bureau could not have
analyzed the environmental impacts of the Recreation Plan
properly. Great Basin, 844 F.3d at 1101.
At some point after the public comment period closed, the
Bureau attached ground photographs for a few Obscure
Routes to the forms; the photographs show details about
vegetation and the condition of the routes themselves. Such
late analysis, “conducted without any input from the public,”
impedes NEPA’s goal of giving the public a role to play in
the decisionmaking process and so “cannot cure deficiencies”
in an EA. Id. at 1104. And, because the Bureau added the
Obscure Routes back to the Steens Mountain transportation
network only over the 2014–15 winter, while the Steens
Mountain was largely inaccessible, ONDA did not have a
chance to survey the Obscure Routes and respond to the
photographs. Thus, the Bureau’s failure to make the
14 ONDA V. ROSE
photographs available during the public comment period
“‘caused the agency not to be fully aware of the
environmental consequences of the proposed action, thereby
precluding informed decisionmaking and public
participation.” Idaho Wool Growers, 816 F.3d at 1104.
Accordingly, we vacate the Recreation Plan and remand.
For the reasons explained above, we do not reach
ONDA’s substantive challenges to the Recreation Plan and
we do not decide whether the Bureau should have prepared an
EIS for the Recreation Plan. ONDA v. BLM, 625 F.3d
at 1124.
E. Costs
Because we vacate and remand as to ONDA’s NEPA
claims, we also vacate the $4,937.99 cost award to the
Bureau. Fed. R. Civ. P. 54(d)(1).
AFFIRMED in part, VACATED in part, and
REMANDED. The parties shall bear their own costs on
appeal.