Klamath-Siskiyou Wildlands Ctr v. John Gerritsma

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
FEB 29 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
KLAMATH-SISKIYOU ) No. 13-35811
WILDLANDS CENTER; OREGON )
WILD; CASCADIA WILDLANDS, ) D.C. No. 1:12-cv-01166-PA
)
Plaintiffs - Appellants, ) MEMORANDUM*
)
v. )
)
JOHN GERRITSMA, Field Manager, )
Ashland Resource Areas, Medford )
District, acting in his official )
capacity; BUREAU OF LAND )
MANAGEMENT, an administrative )
agency of the U.S. Department of )
Interior, )
)
Defendants - Appellees, )
)
ROUGH & READY LUMBER )
COMPANY, an Oregon limited )
liability company; FARMER )
LOGGING; GREG LILES )
LOGGING, Oregon corporations, )
)
Intervenor-Defendants - Appellees. )
)
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Argued and Submitted October 14, 2015
Portland, Oregon
Before: FERNANDEZ, GILMAN,** and BEA, Circuit Judges.
Klamath-Siskiyou Wildlands Center, Oregon Wild, and Cascadia Wildlands
(collectively “Klamath-Siskiyou”) appeal the district court’s order and judgment in
favor of the United States Bureau of Land Management and a field manager
thereof, John Gerritsma, in his official capacity (collectively “BLM”).1 We affirm.
Klamath-Siskiyou brought this action pursuant to the provisions of the
Administrative Procedure Act, 5 U.S.C. §§ 701–706 (“APA”) after BLM approved
the Rio Climax Forest Management Project (“the Project”) and, more particularly,
approved the revised Environmental Assessment (“EA”) for the Project. Klamath-
Siskiyou asserts that the EA was deficient in a number of respects and that BLM
failed to follow its land use plan for the Project area. These shortcomings, it
argues, rendered BLM’s actions arbitrary and capricious. See 5 U.S.C. §
**
The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.
1
What we hold here also applies to the Intervenors, Rough & Ready Lumber
Company, Farmer Logging, and Greg Liles Logging. Thus, we will not refer to
them separately.
2
706(2)(A); see also Great Basin Mine Watch v. Hankins, 456 F.3d 955, 961–62
(9th Cir. 2006); Hells Canyon All. v. U.S. Forest Serv., 227 F.3d 1170, 1176–77
(9th Cir. 2000). We disagree. In reviewing BLM’s actions, “‘we do not substitute
our judgment for that of the agency.’” Lands Council v. McNair, 629 F.3d 1070,
1074 (9th Cir. 2010). On the contrary: “Agency action is valid if the agency
‘considered the relevant factors and articulated a rational connection between the
facts found and the choices made.’” Id. Moreover, we must be particularly careful
to avoid thinking of ourselves as “‘a panel of scientists’” rather than showing the
deference owed to the agency’s scientific specialists. Id.
(A) NEPA2
NEPA required that BLM “‘consider every significant aspect of the
environmental impact’” of the Project3 and inform the public that it had done so.4
In carrying out those functions, it prepared the EA and determined that it need not
prepare an Environmental Impact Statement. See Native Ecosystems Council v.
U.S. Forest Serv. (Native Ecosystems Council), 428 F.3d 1233, 1238–39 (9th Cir.
2005). It, therefore, issued a finding to that effect. See id. at 1239. Klamath-
2
National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–4370h.
3
Conservation Cong. v. Finley, 774 F.3d 611, 615 (9th Cir. 2014).
4
Id.
3
Siskiyou asserts that BLM did not take the required “hard look” before it reached
its decision,5 but we disagree.
We have carefully reviewed the administrative record and agree with the
district court that the EA was sufficient and justified BLM’s actions. Succinctly
put:
(1) BLM was not required to set forth the exact locations and
numbers of trees that would, or might, be removed for the purpose of exerting
some control over mistletoe growth without ignoring that parasite’s (disease’s)
beneficial effects in the forest ecosystem. It was sufficient for the EA to describe
what forest conditions then existed and to carefully explain what, by using the
proposed management practices, the forest conditions would be after BLM had
done the proposed density and disease control work.
(2) The EA and BLM decision did not take what amounted to
antithetical positions regarding old-growth trees. BLM proposed to remove some
mistletoe-infected trees and to leave old-growth trees. True, the latter might
have had mistletoe infections. But BLM made it clear that old-growth trees, as
defined in the EA, would not be removed, and nothing in the record indicates the
5
See Ctr. for Biological Diversity v. Salazar, 695 F.3d 893, 916–17 (9th Cir.
2012); Native Ecosystems Council, 428 F.3d at 1239.
4
contrary. Put otherwise, the fact that some mistletoe-infected trees would be
removed and that some old-growth trees were infected does not lead to a logical
conclusion that some old-growth trees would be removed.
(3) Klamath-Siskiyou asserts that improper (illegal) off-highway-
vehicle incursions might occur. But the EA recognized that possibility and
carefully detailed steps that would be taken to preclude, or at least greatly
minimize, the problem. BLM reasonably concluded that there would be few or no
impacts and sufficiently discussed the risks posed by off-highway-vehicle use in
light of that conclusion. Of course, there is and always will be the possibility of
illegal activity by others, but if that were sufficient to preclude BLM action, it
could never act at all.
(B) FLPMA6
Under FLPMA, BLM was required to propose a proper land use plan,7 and
once that was adopted, BLM was required to adhere to it.8 Our review of the
6
Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701-
1787.
7
See Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549, 555–56 (9th
Cir. 2006). Here that plan was the Medford District Resource Management Plan
(“the Plan”).
8
See Or. Nat. Res. Council Fund v. Brong, 492 F.3d 1120, 1125 (9th Cir.
(continued...)
5
record satisfies us that BLM did adhere to the Plan. Again, succinctly put:
(1) Klamath-Siskiyou maintains that the Plan required that every
management action by BLM maintain or improve soil productivity and that the
Project will decrease productivity to some extent. However, that misstates the
Plan, which, rather, states that soil improvement is a desideratum and requires use
of the best management practices, but which also recognizes that any surface
disturbance may cause some relatively minor losses, even though many steps will
be taken to minimize those while improving the overall health of the forest. In
short, there is no absolute maintain-or-improve rule. Therefore, the losses of soil
productivity that are expected to result from the Project are permitted by the Plan.
The district court did not err.
(2) Klamath-Siskiyou then asserts that the EA is not consistent with
the Plan’s provisions regarding fragile soils. Klamath-Siskiyou did not specifically
raise its fragile-soils claim during the administrative proceedings, as it should have
done. See Lands Council, 629 F.3d at 1076. Nevertheless, we will consider the
argument on its merits. See id.; cf. Buckingham v. Sec’y of the U.S. Dep’t of
Agric., 603 F.3d 1073, 1080–81 (9th Cir. 2010). Again, however, the district court
8
(...continued)
2007); Klamath Siskiyou, 468 F.3d at 556.
6
did not err. The record shows that in the EA BLM did carefully consider the
nature of the soils that it would impact within the Project area, and it did not find
any of them to be fragile. Unsurprisingly, Klamath-Siskiyou did not point to any
evidence in the record that there were fragile soils; it did not refer to fragility at all
during the administrative proceedings. Of course, Klamath-Siskiyou does now
claim that Map 6 in the Plan is sufficient to show that fragile soils will be
impacted. We disagree. That map is, as BLM pointed out, an indication of areas
that might contain fragile soils rather than a determination that those areas do
contain fragile soils, in whole or in any particular part. That is something that had
to be determined on the ground when a project was proposed.
The disclaimer on Map 6 is expansive: “The Bureau of Land Management
cannot assure the reliability or suitability of this information for a particular
purpose. Original data was compiled from various sources. Spatial information
may not meet National Map Accuracy Standards. This information may be
updated without notification.” We find it counterintuitive that Map 6 details
definitive fragile-soils designations in the face of clear language disclaiming “the
reliability or suitability of this information for a particular purpose” and warning
that the “information may be updated without notification.” Instead, we hold that
Map 6 is not a binding determination of the exact locations of fragile soils.
7
The dissent points out that the same disclaimer is on all but one of the other
maps in the RMP. This fact does not change our conclusion. Like Map 6, all the
other maps with the disclaimer are illustrative rather than depictions creating static,
binding obligations on BLM. For instance, many of the other maps detail land
designations that have changed since the RMP’s creation in 1995. To hold that the
maps from 1995 require BLM to manage the land in conformity with outdated land
designations would be illogical.
Finally, both the dissent and Klamath-Siskiyou claim that our holding
hollows out BLM’s obligations under the RMP because BLM can now avoid those
obligations by simply changing geographic designations without public oversight.
We respectfully disagree. Our holding does not grant BLM the carte blanche right
to trample on fragile soils. BLM is undisputedly bound by the RMP, including its
fragile-soils requirements. We simply hold that Map 6 is not an exact
representation of where those fragile soils actually exist. Accordingly, the
fragility of the soil must be determined from a project-specific soil analysis rather
than from a coarse-scale map covering 859,000 acres.
AFFIRMED.
8
FILED
FEB 29 2016
Klamath-Siskiyou Wildlands Ctr. v. Gerritsma, No. 13-35811 MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Bea, Circuit Judge, Concurring and Dissenting
I join my colleagues’ analysis as to Plaintiffs’ NEPA claims in full. I write
separately, however, because I would find that Plaintiffs have indeed demonstrated
that the Bureau of Land Management’s (“BLM’s”) authorization of the Rio Climax
Project (the “Project”) violated the Medford Resource Management Plan’s (the
“RMP’s”) “fragile soil” provisions.
The Federal Land Policy and Management Act (“FLPMA”) requires the
BLM to adopt a land use plan—here, the Medford RMP—which imposes
substantive limitations on the BLM’s discretion. See 43 U.S.C. § 1732(a); 43
C.F.R. §1610.5-3(a). The Medford RMP, as approved by the Secretary of the
Interior, includes various Appendices and thirteen maps, including Map 6.
For the reasons set forth below, I read Map 6 as memorializing binding
determinations regarding the location of “sensitive,” or fragile, soils in the
Medford area. Thus, the Project’s authorization of tractor logging over designated
fragile soil areas violates the “best management practices” mandated in the RMP’s
Appendix D (instructing the BLM to use suspension logging and to “avoid tractor
logging” over fragile soils). The BLM’s failure to comply with its governing
RMP, in turn, violates the FLMPA. Independently, the BLM’s attempt to alter its
RMP (by reclassifying soils designated as fragile in Map 6) without complying
with statutorily mandated amendment procedures violates the FLPMA. For both of
these reasons, I would reverse the district court’s grant of summary judgment to
the BLM on Plaintiffs’ FLPMA claim and enter judgment in favor of Plaintiffs on
-1-
that claim.1 See Oregon Nat. Res. Council Fund v. Brong, 492 F.3d 1120, 1125–31
(9th Cir. 2007) (finding that the BLM’s authorization of a project based on an
interpretation of its RMP that was “plainly inconsistent” with that RMP violated
the FLPMA, and entering judgment in favor of Plaintiffs on that claim).
In holding that Map 6 is not a binding determination of the location of
fragile soils, the majority relies exclusively on the disclaimer language written in
illegibly small text on Map 6, which states:
BLM cannot assure the reliability or suitability of this information for
a particular purpose. Original data was compiled from various
sources. Spatial information may not meet National Map Accuracy
Standards. This information may be updated without notification.
ER 152. The BLM and the majority read far too much into boilerplate language
developed by the United States Geological Survey (“USGS”) that commonly
appears on maps produced by the BLM—as well as on maps produced by other
1
As a threshold matter, I agree with the majority’s conclusion that Plaintiffs have
not waived this argument by failing specifically to mention the term “fragile soil”
during the administrative proceedings and instead focusing more broadly on their
concerns of soil degradation and erosion. We have held that plaintiffs can make
more specific arguments in court proceedings than they made in administrative
proceedings, so long as the plaintiff previously raised the broader issue and thus
gave the agency adequate notice of it. See Native Ecosystems Council v. Dombeck,
304 F.3d 886, 899–900 (9th Cir. 2002). Here, the RMP’s fragile soil and soil
productivity provisions appear in the same three-page section regarding soil
directives. Moreover, they work in tandem with each other. (See, e.g., “[S]ome
minor losses in productivity could result due to surface disturbances (soil
compaction, road construction, etc.) caused by management activities.
Implementing best management practices and minimizing disturbance of fragile
areas will keep losses to a minimum (see Appendix D).” (emphases added)).
Thus, I would find that Plaintiffs adequately preserved their current fragile soil
argument.
-2-
departments of our federal government.2 See National Map Accuracy Standards,
U.S. GEOLOGICAL SURVEY (rev. June 17, 1947) (last visited Feb. 22, 2016),
available at http://nationalmap.gov/standards/nmas.html. In my view, the
disclaimer on Map 6 is nothing more than a warning to the public to do its own
investigation, appropriate to its own purposes.
To start, the majority’s interpretation is inconsistent with the text of the
disclaimer itself: That the BLM is the speaker in the disclaimer (i.e. “BLM cannot
assure . . .”) strongly suggests that the disclaimer is directed to persons other than
the BLM who might see the maps in the RMP. In this regard, the disclaimer is
similar to warnings with which investors are familiar:
In the preparation of this site, every effort has been made to offer the
most current, correct and clearly expressed information possible.
Nonetheless, inadvertent errors can occur . . . . Users are encouraged
to consult with professional advisers for advice concerning specific
matters before making any decision impacting on these matters.”
Disclaimer, PI TRADING.COM (last visited Feb. 23, 2016), available at
http://pitrading.com/disclaimer.html. Such disclaimers are pervasive in our
society. Yet one does not often find financial advisors stating they themselves do
not rely on the information upon which they themselves have developed.
The interpretation of Map 6’s disclaimer adopted by the majority
today—that the BLM wrote the disclaimer on Map 6 to itself—defies common
sense. If the BLM is telling itself, and everyone else, not to rely on the maps it
draws up, of what earthly use is a map of fragile soils? (Pardon the pun). Indeed,
the very purpose of land use plans, of which maps are a part, is to limit the
2
See, e.g., Chugach National Forest GIS – Ownership Boundaries, U.S. DEP’T
OF AGRIC. (Nov. 29, 2011), available at
http://data.fs.usda.gov/geodata/rastergateway/alaska/chugach/landstat.php.
-3-
discretion of the BLM in managing natural resources. If the maps are not to be
followed, how can they limit the BLM’s discretion?
The majority’s interpretation also controverts the plain text and structure of
the RMP pertaining to fragile soils, which directs the BLM:
[To] [m]anage lands dominated by fragile granitic and schist soils
consistent with southern general forest management area guidelines
[and to] . . . limit surface-disturbing activities on all lands dominated
by fragile granatic, schist, and pyroclastic soils (approximately 85,300
acres) to maintain site productivity, reduce soil erosion, and minimize
water quality degradation. These soils are scattered throughout the
planning area, however, the largest concentrations of soils formed
from decomposed schist and/or granite parent material occurs [sic] in
Evans Snow, Sugar, and Meadow Creeks, upper portions of Williams
Creek, and headwaters of Birdseye Creek. Soils formed in deeply
weathered pyroclastic parent materials are predominantly in the
foothills of the Cascades. (See Map 6 and Appendix D for fragile soils
mitigation measures.)
(emphases added). The majority’s conclusion that Map 6 is illustrative only is
inconsistent with this passage’s use of unqualified, affirmative statements in
describing the location and existence of fragile soils in the project area. The RMP
does not say that the BLM “thinks” or “believes” there may be fragile soils in the
project area. Rather, the RMP declares that fragile soils “are scattered throughout
the planning area.” (emphasis added). It specifically identifies and describes
regions where “the largest concentrations of soils . . . occur[].” It says flatly that
“deeply weathered pyroclastic parent materials are predominantly in the foothills
of the Cascades.” (emphasis added). It even quantifies the total acreage containing
fragile soils (85,300 acres) with relative specificity. And after generally describing
-4-
the regions containing fragile soils, the RMP directs the reader to “Map 6” for
more details.3
Furthermore, the BLM’s argument that the disclaimer renders Map 6 merely
illustrative is inconsistent with the presence of the same disclaimer on every map in
the Medford RMP’s “map packet” (with the exception of Map 1).4 If the BLM is
not bound by Map 6’s fragile soils designation, then it is also free to disregard the
RMP’s watershed designations (Map 5), its big game designations (Map 7), its
“special area” designations (Map 8), and all the substantive provisions that apply to
those areas.5
Such a result cannot be squared with the Medford RMP’s routine reliance on
the map packet to identify the locations of certain resources and landscapes where
the RMP’s directives and best management practices apply. Indeed, the
descriptions in the RMP’s main text of the lands to which its mandates apply are
often so general and cryptic that one would find it difficult, if not impossible, to
determine specifically where those mandates apply without the maps. Like the soil
3
That Map 6 should be interpreted as binding on BLM is further corroborated by
the RMP’s introductory statement that “[m]aps of the resource management plan
land use allocations are located in the accompanying map packet.” (emphasis
added). In other words, the thirteen maps incorporated into the Medford RMP are
not superfluous; their purpose is to make “land use allocations” in the Medford
area.
4
The parties have not included every map in their excerpts of record, but the
Medford RMP’s map packet is publicly available at
http://www.blm.gov/or/plans/files/RMP_1995_Medford_Maps.pdf. These maps
are therefore subject to judicial notice.
5
That is, BLM could simply avoid any limitations associated with those
geographical designations by unilaterally reclassifying the underlying land
designation shown in the map packet—without any public or agency oversight.
-5-
directives section corresponding to Map 6, quoted above, the main RMP section
pertaining to “Riparian Reserves” sets forth various management directives that
apply in “key watershed[]” areas, but gives virtually no information about where
those watersheds are located. Concededly, the RMP lists the “Key Watershed
Name[s]” and the number of “BLM Acres” associated with each watershed (e.g.,
“2,710” acres are classified as “Beaver Creek”), but this information alone is
clearly insufficient to determine precisely how those 2,710 acres designated as the
“Beaver Creek” watershed are distributed throughout the project area and, in turn,
where the RMP’s watershed provisions apply. The RMP therefore directs the
reader to “[s]ee Map 3 for locations of key watersheds.”
Similarly, the RMP section corresponding to Map 8 describes management
directives pertaining to “areas of critical environmental concern,” and repeatedly
directs the reader to “Map 8 for locations and Table 6 for site-specific acres.” See
also (“Actions including timber harvest will be allowed if they do not conflict with
the habitat needs of these plants (see Map 8)). Management 16,340 acres near
Soda Mountain and Agate Flat areas as the Cascade/Siskiyou ecological emphasis
area (see Map 8). . . . Three areas, Ferris Gulch (2,200 acres), Timber
Mountain/John’s Peak (16,250 acres), and Quartz Creek (7,120 acres) will be
managed to provide for OHV use. See Table 8.”). In sum, it is clear from these
passages that the purpose of the map packet is to identify the land areas over which
the RMP’s numerous directives apply. The majority’s holding that the BLM is
bound only by the RMP’s directives—but not by a map packet whose clear
-6-
purpose is to demonstrate the locations where those directives apply—is
fundamentally inconsistent with the structure and text of the RMP.6
My colleagues urge that the maps are merely illustrative because land
designations may change over time (and have changed since the approval of the
Medford RMP in 1995). Thus, to require the BLM to manage lands in conformity
with outdated land designations would be “illogical.”
There are three problems with the majority’s logic. First, the same argument
could be made as to the land use designations listed in the RMP itself. But the
BLM does not dispute that those designations are binding.7 Second, the majority’s
argument is inconsistent with the RMP itself, as well as basic canons of statutory
interpretation. The RMP does not require the BLM to comply with static land
designations; on the contrary, it vests the BLM with significant discretion to alter
some land use designations without complying with formal FLPMA amendment
procedures.8 However, it confers no comparable discretion with respect to fragile
6
Indeed, the BLM’s arguments are internally inconsistent. On the one hand, the
BLM argues that it is not bound by the map packet because (as demonstrated by
the disclaimer language) the maps are too imprecise. Yet the BLM concedes that it
is bound by the less precise land use designations in the RMP.
7
For example, the main RMP text routinely quantifies the specific acreage
associated with various land use designations, even though that acreage would
necessarily change if, as the majority suggests, the land use designations shown on
in the map packet change. (See, e.g., Table 6, listing the acreage and management
prescriptions for various “special” management areas).
8
For example, the RMP permits the BLM to modify the boundaries of the north
and south “general forest management areas” if the BLM “determines that portion
of the area are no longer within ½-mile of raptor nests which have been active
within the past two years.” Likewise, the RMP authorizes the BLM to modify the
area designated as “crucial winter range for wildlife [primarily migrating elk and
deer]” if the BLM “determines that portions of the area no longer contain crucial
-7-
soil designations.9 The principle of expressio unius requires us to infer from this
omission that the BLM does not have authority to modify fragile soil designations
through a short-cut process that evades public oversight.
Which brings me to the majority’s third error: its assumption that a simple
finding that the whole RMP (i.e., the RMP as approved by the Secretary of the
Interior) is binding would require the BLM to comply with outdated designations.
It would not. It would simply require the BLM to comply with well-established
FLPMA amendment procedures—which exist to address the very situation that
(according to the BLM) has arisen here.10 If in fact there are no fragile soils in the
project area, then the BLM will be able successfully to modify its RMP through
this statutorily mandated procedure. But the proper solution for correcting an
inaccurate map is for the BLM to propose an amendment and submit an
Environmental Assessment for public review and comment—and not for us to
winter range for wildlife.”
9
The BLM argues that the RMP confers on the BLM discretion to “designate new
RNAs [‘research natural areas’] as appropriate.” But this provision merely permits
the BLM to increase restrictions on its land use. It hardly follows that the RMP
gives the BLM equal autonomy to remove land use restrictions.
10
The BLM relatedly argues that minor discrepancies between the maps and the
main body of the RMP show that the map packet must be advisory (for example,
Map 9 depicts more “recreation sites” than are listed in the corresponding RMP
provision). Putting aside that this is actually consistent with the structure of the
RMP (under which the maps often provide far more detailed and precise
information than the main text of the RMP), this argument fails for the same
reason. To the extent the BLM thinks that any maps are inaccurate (or no longer
accurate), then—absent a provision in the RMP to the contrary—BLM needs to
comply with statutorily prescribed amendment procedures to make those maps
accurate. Until then, the BLM is bound by the land use designations approved by
the Secretary of the Interior.
-8-
adopt a textually, logically, and functionally unsupportable reading of the BLM’s
land use plan.
In fact, our precedent makes clear that the BLM’s attempt to reclassify
previously designated fragile soil areas without following formal amendment
procedures violates the FLPMA. See Klamath Siskiyou Wildlands Center v.
Boody, 468 F.3d 549 (9th Cir. 2006).11 As in Boody, BLM’s 2011 soil analysis
effectively amends the RMP’s findings relating to the location of fragile soils. By
finding that previously designated “fragile soil” areas are no longer fragile, BLM
altered the “terms and conditions” of the RMP by eliminating the necessity of
11
In Boody, we held that agency actions that effectively “amend . . . resource
management plans” must comply with formal NEPA and FLPMA procedures. Id.
at 560. There, the BLM’s original land management plan assigned the red tree
vole a “Category C” protection rating, which meant that certain measures had to be
taken before the BLM could authorize any actions that would disturb the red vole’s
habitat. Id at 553. Then, without following NEPA or FLPMA procedures, the
BLM issued a memorandum unilaterally downgrading the red tree vole to
“Category D,” and then later eliminated protections altogether. Id. These
downgrades were done in connection with a timber sale that would almost certainly
“destroy” any red vole nests in the harvest area. Id. By downgrading the red
vole’s protected status, the BLM avoided having to follow the protection
procedures prescribed by the governing land management plan. Id. We held that
changing the protection status assigned to the red vole in the management plan
qualified as an “amendment” (as opposed to mere plan “maintenance”) because it
“altered the terms and conditions of the [management plan].” Id. at 556-57; see 43
C.F.R. § 1610.5–5 (summarizing amendment procedures). We therefore concluded
that the BLM violated both NEPA and the FLPMA by changing a term or
condition of a management plan without following proper statutory procedures.
Boody, 468 F.3d at 559-62. Furthermore, we concluded, the timber sales
authorized on the basis of that unauthorized plan change also violated federal law.
Id.at 563.
-9-
complying with best management practices in those areas. Under Boody, this
unauthorized amendment violates both NEPA and the FLPMA.
BLM argues that even if Map 6 is binding, the RMP requires only that the
BLM “avoid” tractor yarding over fragile soils; but it does not strictly “prohibit”
such logging. The majority does not reach this argument, so I address it only
briefly. The BLM’s apparent suggestion that an RMP’s proscriptions must be
absolute before the BLM need comply with them is untenable. The command to
“stop” on the red placards dotting our streets is not optional simply because those
placards do not read “stop absolutely.” Similarly here, Merriam Webster’s defines
the term “avoid” as “to prevent the occurrence,” or “to refrain from [an act].”
MERRIAM-WEBSTER 3b-3c (last visited Nov. 23, 2015). Thus, the RMP’s
instruction to “avoid” tractor logging means the BLM must “refrain” from or
“prevent the occurrence” of tractor logging over fragile soils—an instruction that
the BLM clearly violates in affirmatively authorizing tractor logging over those
areas. In any event, the argument that the BLM can ignore the RMP’s restrictions
simply because they are not stated in absolute terms proves too much. All
provisions of the RMP are framed in similarly aspirational terms. The
interpretation urged by the BLM would therefore render illusory all of the RMP’s
terms.12
12
I also note that the BLM has not even attempted to show that use of “best
management practices,” including “full or partial suspension . . . yarding” in order
to avoid surface-disturbing activity over fragile soils identified in Map 6, would be
impracticable here. Suspension yarding utilizes a suspended pulley system
whereby harvested logs are transported above the ground on a suspended steel
cable (called a “highline”) from locations where trees are felled to a central
location (usually a road head) for further transport. Suspension yarding reduces
soil disturbances because the logs do not drag along the ground.
-10-
For the foregoing reasons, I would reverse the district court’s grant of
summary judgment to the BLM on Plaintiffs’ FLPMA claim. To the extent the
majority concludes otherwise, I respectfully dissent.
-11-