ONDA Sets Precedent for Wilderness and ORVs
The Oregon Natural Desert Association (ONDA) won a big victory for us all in July 2008, forcing the Bureau of Land Management (BLM) to evaluate wilderness characteristics in its revision of resource management plans. The decision also expanded National Environmental Policy Act (NEPA) case law on the range of alternatives that should be evaluated in agency management plans.
The Court’s Ruling
According to the Ninth Circuit Court of Appeals decision, ONDA v. BLM, 531 F.3d 1114 (9th Cir. 2008), the BLM had wrongly refused to evaluate impacts to wilderness values on public lands and had failed to consider reasonable alternatives with respect to areas closed to off road vehicle use.
The contested plan, the Southeastern Oregon Resource Management Plan (SEORMP), governs BLM’s management of about 4.6 million acres of public land and includes some of the most treasured landscapes in Oregon, including the Owyhee Canyonlands. The bulk of the lands are comprised of fragile high desert and sagebrush steppe.
The ruling will have a profound impact not only in southeast Oregon, but on the management of all BLM lands. Even better, because the decision clarified NEPA requirements, it will also impact other land management agencies, most notably the US Forest Service and its ongoing travel planning process. It could also put the brakes on any programmatic EISs that might have been rushed to completion in the next few months, if the agencies fail to consider wilderness values.
In its plan, the BLM refused to inventory millions of acres of public lands to assess their wilderness characteristics. Instead, the agency relied on the WSA inventory completed in 1991 under FLPMA Section 603 (43 U.S.C. § 1782(a)). Section 603 required the BLM to conduct a wilderness inventory for all lands under its management and make a recommendation as to their eligibility.
The Ruling on Wilderness Characteristics
The Ninth Circuit rejected BLM’s argument that this Section 603 inventory, conducted largely in the 1970s, allowed BLM to ignore wilderness in subsequently developed land use plans. The court stated, “[r]ead carefully and in context, the FLPMA makes clear that wilderness characteristics are among the values which the BLM can address in its land use plans, and hence, needs to address in the NEPA analysis for a land use plan governing areas which may have wilderness values.” 531 F.3d at 1133.
“In sum, the BLM misunderstood the role of wilderness characteristics in its land use planning decisions. . . . wilderness characteristics are a value which, under the FLPMA, the Bureau has the continuing authority to manage, even after it has fulfilled its 43 U.S.C. § 1782 duties to recommend some lands with wilderness characteristics for permanent congressional protection.” 531 F.3d at 1142.
The court also confirmed that “wilderness characteristics themselves must also require NEPA consideration when they are implicated by land use planning efforts.” 531 F.3d at 1138. This broad statement potentially reaches into Forest Service travel planning and will help wilderness advocates argue for protection of, or at least consideration of impacts to, potential wilderness.
The court cited roadless area case law to support its conclusion regarding wilderness, reaffirming the need to evaluate the impacts of land use decisions on roadless areas beyond implications for wilderness suitability (“roadlessness has environmental significance apart from permanent wilderness preservation” 531 F.3d at 1138.). Even if Congress has acted, the agency is not excused “from complying with its NEPA obligations when implementing a land-use program.” 531 F.3d at 1138.
Finding that the law, including BLM’s own guidance documents, unmistakably requires BLM to analyze impacts to a landscape’s wilderness characteristics, the court vacated the plan and ordered BLM to prepare a new plan. In addition, the court dismissed the BLM’s assertion that by considering “other resources” they had sufficiently analyzed the impacts of the decision on wilderness characteristics.
The BLM issued its decision adopting the SEORMP in 2003. Because the plan contained no updated wilderness inventory, ONDA conducted their own inventory using the BLM’s process (which the Bush Administration has since revoked). ONDA’s inventory found that 1.3 million acres, not including existing BLM Wilderness Study Areas, possess statutorily defined wilderness character. Though ONDA’s inventory revealed the flaws of the BLM’s plan, citizens do not necessarily have to do such a survey. In a previous ONDA case, a district court confirmed that it is the agency’s obligation, not the public’s, to gather key baseline information and then present it in its NEPA documentation: “ONDA did not have a responsibility to provide accurate information regarding any changes to the wilderness characteristics in the [area] before the EA was issued. BLM did.” ONDA v. Rasmussen, 451 F.Supp.2d 1202, 1212–13 (D. Or. 2006).
NEPA Requires Alternatives to ORV Use
In addition to its wilderness ruling, the court agreed with ONDA that the BLM had not considered a reasonable range of alternatives for off-road vehicle (ORV) use. In BLM’s final decision, about 0.34%, or 16,000 acres, would have been closed to ORV use, with 2 million acres limited to designated routes and 2.62 million acres open to unlimited travel. In its analysis, the BLM never considered closing more than a small fraction (0.77%) of the planning area to ORVs. In fact, every alternative BLM considered would actually have increased the area open to ORVs, when compared to the previous management direction. The court observed that “[i]t is precisely this sort of uncritical privileging of one form of use over another that we have held violates NEPA. Closures, not just “limited” designations, must be considered to comply with NEPA.” 531 F.3d at 1145.
BLM argued that the “limited” designation provided “a comparable degree of protection” as did the “closed” designation. However, the court took special note of the fact that even in areas where travel was limited to designated routes, cross country travel was still allowed for motorized dispersed camping. In those “limited” areas, vehicles were allowed to drive up to 150 feet off of an existing road.
BLM also argued that if resource damage occurred the agency could issue emergency closures. Rejecting this argument, too, the court observed that “[l]imited ORV use is simply not identical to no ORV use. A limited designation, even with the possibility of closure, does not provide protection equivalent to a straightforward closure . . . . As they pass through “limited” areas, both on existing routes and en route to camping sites, ORVs will still churn up mud, transport mud and seeds into the regions through which they pass, and will still significantly affect the outdoor recreation experience. That the BLM might then — once the damage has been done — implement an emergency closure does not render this form of management substantially identical to an initial closure. In sum, the BLM must consider closures of significant portions of the land it manages.” 531 F.3d at 1145 (emphasis added).
An analogous argument could be made for the Forest Service travel planning process and those forests that refuse to re-evaluate their existing system routes.
What’s Next?
ONDA, joined by the Committee for the High Desert and Western Watersheds Project, filed the suit in July, 2003. The Ninth Circuit’s 2008 ruling set aside the SEORMP and sent the matter back to BLM to prepare a revised environmental review and a new plan that considers management decisions in light of its obligation to protect wilderness values. This ruling put the BLM in an awkward situation, since its old RMP was drastically out of date, and the new one was invalid. BLM therefore petitioned the Ninth Circuit, asking the court to revise its ruling to allow BLM to continue operating under the 2003 RMP until a new plan can be prepared. ONDA and BLM are currently in negotiations to determine an option acceptable to everyone.
— Mac Lacy is senior attorney at ONDA, focusing on wilderness, grazing, and OHV issues on eastern Oregon’s public lands.
The Court’s Ruling
According to the Ninth Circuit Court of Appeals decision, ONDA v. BLM, 531 F.3d 1114 (9th Cir. 2008), the BLM had wrongly refused to evaluate impacts to wilderness values on public lands and had failed to consider reasonable alternatives with respect to areas closed to off road vehicle use.
The contested plan, the Southeastern Oregon Resource Management Plan (SEORMP), governs BLM’s management of about 4.6 million acres of public land and includes some of the most treasured landscapes in Oregon, including the Owyhee Canyonlands. The bulk of the lands are comprised of fragile high desert and sagebrush steppe.
The ruling will have a profound impact not only in southeast Oregon, but on the management of all BLM lands. Even better, because the decision clarified NEPA requirements, it will also impact other land management agencies, most notably the US Forest Service and its ongoing travel planning process. It could also put the brakes on any programmatic EISs that might have been rushed to completion in the next few months, if the agencies fail to consider wilderness values.
In its plan, the BLM refused to inventory millions of acres of public lands to assess their wilderness characteristics. Instead, the agency relied on the WSA inventory completed in 1991 under FLPMA Section 603 (43 U.S.C. § 1782(a)). Section 603 required the BLM to conduct a wilderness inventory for all lands under its management and make a recommendation as to their eligibility.
The Ruling on Wilderness Characteristics
The Ninth Circuit rejected BLM’s argument that this Section 603 inventory, conducted largely in the 1970s, allowed BLM to ignore wilderness in subsequently developed land use plans. The court stated, “[r]ead carefully and in context, the FLPMA makes clear that wilderness characteristics are among the values which the BLM can address in its land use plans, and hence, needs to address in the NEPA analysis for a land use plan governing areas which may have wilderness values.” 531 F.3d at 1133.
“In sum, the BLM misunderstood the role of wilderness characteristics in its land use planning decisions. . . . wilderness characteristics are a value which, under the FLPMA, the Bureau has the continuing authority to manage, even after it has fulfilled its 43 U.S.C. § 1782 duties to recommend some lands with wilderness characteristics for permanent congressional protection.” 531 F.3d at 1142.
The court also confirmed that “wilderness characteristics themselves must also require NEPA consideration when they are implicated by land use planning efforts.” 531 F.3d at 1138. This broad statement potentially reaches into Forest Service travel planning and will help wilderness advocates argue for protection of, or at least consideration of impacts to, potential wilderness.
The court cited roadless area case law to support its conclusion regarding wilderness, reaffirming the need to evaluate the impacts of land use decisions on roadless areas beyond implications for wilderness suitability (“roadlessness has environmental significance apart from permanent wilderness preservation” 531 F.3d at 1138.). Even if Congress has acted, the agency is not excused “from complying with its NEPA obligations when implementing a land-use program.” 531 F.3d at 1138.
Finding that the law, including BLM’s own guidance documents, unmistakably requires BLM to analyze impacts to a landscape’s wilderness characteristics, the court vacated the plan and ordered BLM to prepare a new plan. In addition, the court dismissed the BLM’s assertion that by considering “other resources” they had sufficiently analyzed the impacts of the decision on wilderness characteristics.
The BLM issued its decision adopting the SEORMP in 2003. Because the plan contained no updated wilderness inventory, ONDA conducted their own inventory using the BLM’s process (which the Bush Administration has since revoked). ONDA’s inventory found that 1.3 million acres, not including existing BLM Wilderness Study Areas, possess statutorily defined wilderness character. Though ONDA’s inventory revealed the flaws of the BLM’s plan, citizens do not necessarily have to do such a survey. In a previous ONDA case, a district court confirmed that it is the agency’s obligation, not the public’s, to gather key baseline information and then present it in its NEPA documentation: “ONDA did not have a responsibility to provide accurate information regarding any changes to the wilderness characteristics in the [area] before the EA was issued. BLM did.” ONDA v. Rasmussen, 451 F.Supp.2d 1202, 1212–13 (D. Or. 2006).
NEPA Requires Alternatives to ORV Use
In addition to its wilderness ruling, the court agreed with ONDA that the BLM had not considered a reasonable range of alternatives for off-road vehicle (ORV) use. In BLM’s final decision, about 0.34%, or 16,000 acres, would have been closed to ORV use, with 2 million acres limited to designated routes and 2.62 million acres open to unlimited travel. In its analysis, the BLM never considered closing more than a small fraction (0.77%) of the planning area to ORVs. In fact, every alternative BLM considered would actually have increased the area open to ORVs, when compared to the previous management direction. The court observed that “[i]t is precisely this sort of uncritical privileging of one form of use over another that we have held violates NEPA. Closures, not just “limited” designations, must be considered to comply with NEPA.” 531 F.3d at 1145.
BLM argued that the “limited” designation provided “a comparable degree of protection” as did the “closed” designation. However, the court took special note of the fact that even in areas where travel was limited to designated routes, cross country travel was still allowed for motorized dispersed camping. In those “limited” areas, vehicles were allowed to drive up to 150 feet off of an existing road.
BLM also argued that if resource damage occurred the agency could issue emergency closures. Rejecting this argument, too, the court observed that “[l]imited ORV use is simply not identical to no ORV use. A limited designation, even with the possibility of closure, does not provide protection equivalent to a straightforward closure . . . . As they pass through “limited” areas, both on existing routes and en route to camping sites, ORVs will still churn up mud, transport mud and seeds into the regions through which they pass, and will still significantly affect the outdoor recreation experience. That the BLM might then — once the damage has been done — implement an emergency closure does not render this form of management substantially identical to an initial closure. In sum, the BLM must consider closures of significant portions of the land it manages.” 531 F.3d at 1145 (emphasis added).
An analogous argument could be made for the Forest Service travel planning process and those forests that refuse to re-evaluate their existing system routes.
What’s Next?
ONDA, joined by the Committee for the High Desert and Western Watersheds Project, filed the suit in July, 2003. The Ninth Circuit’s 2008 ruling set aside the SEORMP and sent the matter back to BLM to prepare a revised environmental review and a new plan that considers management decisions in light of its obligation to protect wilderness values. This ruling put the BLM in an awkward situation, since its old RMP was drastically out of date, and the new one was invalid. BLM therefore petitioned the Ninth Circuit, asking the court to revise its ruling to allow BLM to continue operating under the 2003 RMP until a new plan can be prepared. ONDA and BLM are currently in negotiations to determine an option acceptable to everyone.
— Mac Lacy is senior attorney at ONDA, focusing on wilderness, grazing, and OHV issues on eastern Oregon’s public lands.
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