West Mojave “Decision Tree” Pruned by Court

Background

In September, a federal judge rejected a Bureau of Land Management (BLM) plan for managing millions of acres of public land in the California desert, and invalidated the use of the “Decision Tree,” a flowchart-like tool that the BLM had adopted to determine where ORV use was appropriate.  In the Center for Biological Diversity, et. al. v. U.S. Bureau of Land Management, et. al., 2009 U.S. Dist. LEXIS 90016 (September 29, 2009), the court ruled that the West Mojave Management Plan (WEMO) violated the Federal Land Policy and Management Act (FLPMA) and the National Environmental Policy Act (NEPA) by favoring off-road vehicle use over protection of sensitive desert resources such as endangered species and archeological sites.  Additional claims were brought by the Center for Biological Diversity related to violations of the Endangered Species Act, but the court found that BLM had fulfilled its obligations and those claims are not discussed in this article.

Summary of the Decision

The court found that the BLM:
-had not shown that the route designations met the “minimization criteria” set out in the agency’s regulations regarding designation of areas and routes for use by off-road vehicles (ORVs) – FLPMA violation;
-permitted development of hundreds of illegal routes despite a management plan limiting designations to routes in existence in 1980 – FLPMA violation;
-did not consider an adequate range of alternatives by failing to consider a plan that closed additional routes to ORV use – NEPA violation;
-had not established a sufficient baseline/”no action” to compare to designations – NEPA violation; and
-had not conducted sufficient analysis of impacts to sensitive resources – NEPA.

Discussion

Minimization Criteria and the “Decision Tree” (Opinion, pp. 19-30)
ORV designations in the WEMO were made in two separate categories: “redesign areas” that were affected by designation of the desert tortoise and Lane Mountain milk-vetch as threatened and endangered species, and; the remainder of the California Desert Conservation Area (CDCA), which was reviewed to confirm compliance with BLM’s regulations. In the redesign areas, the BLM used a flowchart-like tool called the “Decision Tree,” which asked a series of questions regarding the various uses of proposed roads. The Decision Tree did not incorporate by reference or specifically include the language of 43 C.F.R. § 8342.1, referred to as the “minimization criteria,” but the BLM claimed that it had complied with this regulation nonetheless. The minimization criteria flows from Executive Orders 11644 and 11989, which require all public land managers to minimize off-road vehicle impacts to natural resources, other users, etc.

The court found that neither the Decision Tree nor the administrative record specifically incorporated the minimization criteria (see, e.g., pp. 28-29). The court also elaborated on the meaning of the word “minimize” in the regulation, clarifying that it refers to the “effects” of route designations, so that the BLM “is required to place routes specifically to minimize ‘damage’ to public resources, ‘harassment’ and ‘disruption’ of wildlife and its habitat, and minimize ‘conflicts’ of uses.” Opinion, p. 30. In this context, the court stated, simply reducing mileage of ORV routes is not sufficient to show minimization of the harmful effects of route designations.

The court reached similar conclusions with regard to the BLM’s designation of routes in the portion of the CDCA that was not evaluated through the Decision Tree model. The court reiterated that the BLM must show a “rational connection” between the facts considered and the decisions made, and found that the BLM had not identified any factual basis to support its claim that the ORV route designations were made in compliance with 43 C.F.R. § 8342.1. Opinion, p. 31.

Adequate Range of Alternatives Must Include Additional Closures (Opinion, pp. 37-42)
All seven alternatives in the WEMO considered ORV access on the same 5,098 miles of routes and, while there was variation in the mileage “open” and the mileage that was “limited” in some way, the BLM did not consider closing additional routes to ORV use. The court found that keeping the same basic network did not comply with NEPA’s requirement to consider a “reasonable range” of alternatives and, further, that by failing to do so, the BLM was essentially “privileging” ORV use.

Identifying a Clear “No Action” Alternative (Opinion, pp. 42-45)
The court was sympathetic to the difficulty in identifying the baseline ORV network and to the fact that the BLM had actually designated routes in the interim. However, the court found that the BLM’s analysis was not consistent or clear with regard to whether the “no action” alternative — against which the environmental impacts of the other alternatives would be compared — was the 1980 route designation or whether it would include the additional formal designations or the illegal routes. The court found that the information presented was so inconsistent as to be misleading and did not comply with NEPA’s requirement to provide the public with sufficient information. The BLM must define the basis for its NEPA analysis and comparison clearly.

Evaluating Impacts to Specific Resources (Opinion, pp. 47-54)While the court did not require a route-by-route analysis of impacts, the court found that general discussions of types of impacts to resources were insufficient. The BLM must include an analysis of the projected impacts of the specific ORV network being proposed. Specific resources that required more detailed analysis were soils, cultural resources, and unusual riparian areas. Where the WEMO Plan stated that effects were not fully determined “because information needed to assess effect is incomplete at the present time,” the analysis was also inadequate.

Sufficiency of Mitigation Measures

The court found against the plaintiffs on their claims that mitigation measures must be more specific to comply with NEPA, finding that the BLM did not have to “prove” that mitigation would be successful. The court also rejected arguments that the agency must show it would have sufficient funding to complete mitigation. Opinion at p. 46.

Commenting on BLM Travel Plans

The main points that can be supported with this case in relation to travel plans are:
BLM must not only use the “minimization” criteria set out in its ORV regulations (43 C.F.R. § 8342.1 - which require ORV area and route designating to minimize harm to other resources and conflict among users), but must also document how it did so in its own records. Otherwise, the designations are invalid.  If a planning process uses the “decision/evaluation tree” or a similar flowchart that does not expressly set out the criteria from the regulation, and how that criteria is applied, the designations will not comply with the regulations and are invalid.

If the designations are not consistent with the governing land use plan, then the BLM must formally amend the plan prior to making the designations and cannot simply presume that the new designations will somehow act as an amendment.

The BLM must consider alternatives with a range of acreage and routes closed to ORV use. If the differences among the alternatives are generally only in the mileage that is open v. limited, then the plan does not comply with NEPA and the BLM must consider new alternatives.

For analyzing the impacts of ORV designations, the BLM:
must use a clearly defined baseline of a route system; and
cannot rely on a general discussion of the “types” of impacts associated with ORVs. While a route-by-route impact analysis is not required, the BLM must tie impacts to the specific route network proposed and the area and resources it will affect.

Conclusion

The NEPA elements of the case apply directly to any NEPA decision-making process, and are applicable to any government agency.  The NEPA finding on the range of alternatives is strongest, and supports an argument that alternatives with a range of acres completely closed to ORVs must be analyzed. The resource-specific findings can provide good guidance on how to shape arguments in the NEPA/travel planning context.

While this case and its interpretation of the FLPMA have direct implications for travel planning on BLM lands, it can also be used as persuasive reasoning when dealing with Forest Service travel planning.  The BLM ORV regulations repeat the language in the Executive Orders, therefore, the argument can and should be made that the court’s rationale bears directly on how the Forest Service regulations implementing those Executive Orders should be applied.  If you would like more information about this new decision’s effects on Forest Service lands, please contact Sarah Peters at Wildlands CPR.

— Nada Culver is Senior Counsel for The Wilderness Society, and is based in Denver, CO.