*1 ASSOCI- MONTANAWILDERNESS ATION, nonprofit organiza- tion, Plaintiff-Appellant, Society; Friends of the The Wilderness *2 Monument; Department Interior; Breaks Nation States of United Missouri Preservation; for Historic Oil Department Trust Interior, States of the al a Accountability Project, Gas department; federal Fulbright, Zane Plaintiffs, capacity Acting his official as Man- ager Upper of Missouri River
v. Monument, Breaks National Defen- CONNELL, capaci official in her Jamie dants-Appellees,* ty as Director Bureau of the of Land Management’s Office; Montana State Stewards; Fergus Missouri River Coun- Pool, capacity Mike in his official as ty; County; Phillips Chouteau Coun- Acting Director Bureau ty; County; Blaine Recreational Avi- Management; Land Bureau of Land Foundation; ation Montana Pilots Management, an of the United Association, Intervenor-Defendants- Department Interior; States United Appellees. Department Interior, States department; Fulbright, federal Zane 11-35818, Nos. 11-35821. capacity Acting in his official as Man Appeals, United States Court of ager Upper Missouri River Ninth Circuit. Monument, Breaks National Defend ants-Appellees,* Argued and Submitted Feb. 2013. Stewards; Fergus River Missouri Coun- July Filed ty; County; Phillips Chouteau Coun-
ty; County; Blaine Recreational Avi- Foundation;
ation Montana Pilots
Association, Intervenor-Defendants-
Appellees. Association,
Montana Wilderness nonprofit organization,
Plaintiff, Society;
The Wilderness Friends of the Monument;
Missouri Breaks Nation- Preservation;
al Trust for Historic Oil Accountability Project,
and Gas
Plaintiffs-Appellants,
v. Connell, capacity
Jamie in her official
as Director of the Bureau of Land
Management’s Office; Montana State Pool, capacity
Mike his official
Acting Director the Bureau Management;
Land Bureau of Land
Management, agency of the United * Terland, 43(c), R.App. Abbey, Robert Pursuant to Fed. P. Jamie Con- substituted for Gene nell, Gary Fulbright Slagel. Mike Pool and Zane have been *4 Jeffrey (argued) Lechner
Steven J. Legal McCoy, Mountain States Wilson Foundation, Lakewood, CO; L. Hertha Lund, Law, Bozeman, MT, PLLC, Lund Intervenor-Defendants-Appellees Mis- for Stewards, County, Fergus souri River County, County and Phillips Chouteau County. Blaine Bishop (argued), K. Matthew Western Center, MT, Helena, Law
Environmental Montana Plaintiff-Appellant Wilder-
ness Association. Kay Angelí S. and Melanie R. James FISHER, Before: RAYMOND C. Denver, CO, Earthjustiee, (argued), GOULD, A. RONALD M. RICHARD Plaintiffs-Appellants The Wilderness Soci- PAEZ, Judges. Circuit ety, Friends of the Missouri Mon- Breaks *5 ument, National Trust for Historic Pres- OPINION Accountability and Gas ervation Oil FISHER, Judge: Circuit Project. challenge groups Plaintiff environmental Moreno, Attorney Ignacia S. Assistant (BLM) the of Land Management’s Bureau General, Welti, Bowen, Tyler Rachel K. (RMP) Management Plan for the Resource Shilton, P. David C. and Robert Stockman Upper River Breaks National Missouri (argued), Department United States of (Monument). The district Justice, Environment and Natural Re- summary to the granted judgment court Division, D.C.; Washington, Karan sources all affirm in defendants on claims. We Shattuck, of Dunnigan Sarah Office part, part in remand. We reverse Solicitor, Department the United States of complied hold that BLM the Federal with Interior, Defendants-Appellees
the Ja- Land Act Policy Management Connell, mie in her official as capacity (FLPMA) and the National Environmental Office; Director of BLM’s Montana State (NEPA) Policy the Na- Act but violated Pool, in capacity Acting Mike his official as (NHPA). tional Historic Act Preservation Manage- Director of Bureau of Land the ment; Management, Bureau of Land BACKGROUND Department of the United States Interior; Department
the United States Antiquities Act authorizes the Pres- Interior, department; the a federal Zane ident the United States to “declare Fulbright, capacity Acting his official landmarks, public proclamation historic Manager Upper the Missouri River structures, prehistoric historic and Breaks National Monument. objects other of historic inter- or scientific upon est that are situated the lands owned A. (argued), Paul Turcke Moore Smith Chtd., by the Turcke, Boise, ID, or controlled Government Buxton & United States to be national monuments.” Intervenor-Defendants-Appellees Recre- 431. In with this ational Aviation Foundation and U.S.C. accordance Montana a Proc- authority, Pilots Association. President Clinton issued establishing Upper lamation Missouri nants of historic trails to abandoned home- River Breaks National Monument in 2001. steads and lookout sites used Meriweth- 7398, FecLReg. Proclamation No. See Lewis; er and remnants of a rich Native (Jan. 2001). pioneer American and history scattered throughout the Monument. See id. at explains The Proclamation that: 7359-60. Upper Missouri River Breaks Na- spectacular tional Monument contains a The President established the Monu- array biological, geological, and his- ment for express purpose of protecting objects torical of interest. From Fort objects. aforementioned See id. at upstream Benton into the Charles M. 7361. To achieve that protection, Russell National Refuge, Wildlife the President directed Secretary of Interi- spans monument Upper miles of the or to develop transportation plan limiting River, adjacent Missouri Breaks roads and prohibiting off-road1travel: Creek, country, portions of Arrow Secretary of the Interior shall Creek, Antelope and the Judith River. prepare transportation plan that ad- largely The area has remained un- actions, dresses the including road clo- changed nearly in the years since restrictions, sures or travel necessary to Meriwether Lewis and William Clark protect objects identified this through traveled epic journey. on their proclamation. Congress In designated the segment Missouri River corridor purpose For the protecting ob- area a this National Wild and Scenic jects above, identified Secretary (Public 94-486, River Law 90 Stat. shall prohibit all motorized and mecha- 2327). The monument encompasses also road, nized vehicle use off except for segments of the Lewis and Clark Na- emergency or authorized administrative Trail, tional Historic the Nez Perce Na- purposes. *6 Trail, tional Historic and the Cow Creek Id. Island Area of Critical Environmental mandates, Consistent with those BLM Concern. began working a management on resource Id. at 7359. The Proclamation declares (RMP), plan including transportation Monument, that the which comprises ap- plan, for the Monument in part 2002. As 375,000 proximately land, acres of federal NEPA, of process, comply the and to with boasts the most viable elk herd Mon- prepared draft and final environmen- tana; of premier big sheep one the horn (FEIS). 2008, tal impact statements In States; herds in the continental United BLM adopted the RMP. The RMP contin- range essential winter sage grouse; for roads, ues to authorize airstrips and mo- habitat for prairie dogs; one of the few Monument, torboats in the but at reduced remaining fully functioning cottonwood levels. The RMP closes 201 miles of roads gallery ecosystems forest on the Northern ways year-round, and closes another Plains; large antelope concentrations of seasonally miles open and leaves 293 miles deer; and spawning mule habitat for the year-round; use; prohibits off-road vehicle endangered pallid sturgeon; perching hawks, airstrips year-round, closes four closes nesting one habitats for falcons and heron, seasonally year- eagles; great open habitat for leaves five peli- blue round; waterfowl; can and a wide and restricts variety of habi- motorized watercraft tat species; for 48 fish use archeological particular days to of the week in wild sites, (and historical teepee rings from segments and rem- and scenic seasonally the Na- DISCUSSION Upper of the Missouri segment) wild River. Scenic tional Wild I. FLPMA lawsuits chal- filed two plaintiffs The Study A. Areas1 Wilderness RMP, brought by the one lenging the provides the FLPMA Secre (MWA) Association Montana Wilderness tary of “shall those road- Interior review by The Wilderness brought a second or less areas of five thousand acres more Missouri Breaks Society, Friends lands, public islands of the roadless Monument, for the Trust Historic National during inventory required the identified and Gas Account- the Oil Preservation and 1711(a) of having section this title as TWS). Project (collectively, ability described the wilderness characteristics FLPMA, asserted violations plaintiffs (78 September Act of Wilderness and the The district court NEPA NHPA. 890; seq.) et Stat. 16 U.S.C. 1131 to summary judgment the defen- granted report shall from time time summary judgment and denied dants as to President his recommendation plaintiffs timely appeal- plaintiffs. of each suitability nonsuitability or such ed. preservation area as wilder or island 1782(a). § “During
ness.” 43 U.S.C. AND STANDARD period JURISDICTION areas and until of review such otherwise, Congress OF REVIEW has determined manage Secretary shall continue to such jurisdiction under 28 We have according authority lands to his under § 1291. review de novo the U.S.C. this law in applicable Act and other grant summary court’s or denial of district to impair suitability manner so as not Tribe judgment. See Te-Moak W. preservation of such areas for as wilder Interior, Dep’t Nev. v. Shoshone U.S. ” 1782(c). Thus, as ness .... Id. rele (9th Cir.2010). plain F.3d here, require vant FLPMA two imposes FLPMA, claims NEPA and tiffs’ under (WSAs): study ments on wilderness areas NHPA are under Adminis reviewed first, roadless; second, be they they must (APA). Act id. trative Procedure See managed impair must so as APA, will be decision Under suitability their preservation as wilder “arbitrary, only capricious, if it set aside Congress designates ness until either discretion, not in an abuse otherwise them wilderness or releases them for with law.” U.S.C. accordance other purposes. MWA contends *7 706(2)(A). § will sustain BLM’s inter We RMP of Monument violates each these so pretation long of Proclamation as mandates. v. Campbell, reasonable. Kester 652
is Cf. 1. Roadlessness Cir.1981) (“In (9th light F.2d 15-16 agency’s presumed expertise in inter not term FLPMA does define the road- charged preting executive orders to its less, legisla- the House on the Report but administration, such in agency we review provides parties that the tion definition All terpretations great with deference.... agree authoritative. this defini- is Under tion, required that the to interpretation that is word ‘roadless’ refers “[t]he reasonable.”). roads which have been im- adopted by be absence of areas in and 1980. include six wilderness lished these 1. lands study Secretary areas. The of Interior estab- (IMP). IMP, turn, view by recognizes and maintained mechanical proved areas, relatively regular to that are means insure WSAs roadless that road- way solely A continuous use. maintained refers to lessness the absence routes consti- by passage vehicles not that improved have been and maintained 94-1163, H.R.Rep. at 17 means, a road.” No. by tute mechanical that roadlessness (1976), reprinted in U.S.C.C.A.N. throughout must be maintained the wilder- added). Here, the (emphasis study period ness ways and that within designates ways miles of within RMP 23.8 “solely by WSAs to be are maintained open. as MWA the Monument’s six WSAs Thus, passage although of vehicles.” one roads, argues really rather that these are section of the RMP to appears assign two- ways, the RMP than and that therefore track routes within WSAs to Level 2 main- requirement that violates FLPMA’s WSAs tenance, the section of devoted roadless. be to specifically WSAs directs that these before, routes will be maintained as solely that, face, MWA is correct on its by passage of vehicles. appears assign the RMP all two-track Monument, government argues, agree, and we including within the routes WSAs, that ways “specific within Level the RMP’s directive that Maintenance ‘ve- ways’ that hicle will 2. MWA is also correct Maintenance be maintained under the Level entails maintenance mechanical non-impairment standard of the IMP means—e.g., installation and maintenance trumps general that rule two-track drainage structures or use of suitable will subject be to level 2 routes/roads gravel materials such as rock to control Br. Answering maintenance.” of Federal runoff, and rutting; grading sedimentation 11-35818, Defendants-Appellees, No. at necessary drainage problems to correct 36.3 government’s reading Because the erosion; brushing or tree removal reasonable, the RMP is we conclude that access; allow administrative and sinkhole ways the RMP does not authorize WSAs safety pre to address hazards. repair to be maintained mechanical means. types sume these maintenance reject argument We therefore MWA’s roads, violating into ways would convert requirement the RMP violates FLPMA’s requirement FLPMA’s WSAs remain that WSAs roadless.
roadless.2 Nonimpairment
Elsewhere, however, the RMP indicates noted, managed As WSAs must be “so types these of maintenance do impair suitability as not to ... the[ir] routes apply two-track located within preservation as wilderness.” The RMP states that the Monu- U.S.C. WSAs. 1782(c). managed implemented ment’s WSAs will continue to be has this through Interim Management nonimpairment under BLM’s mandate uses, Policy for Re- IMP.4 IMP prohibits Lands Under Wilderness facilities or Management challenge Policy appropriate 2. BLM's Interim action to BLM’s ac- Lands Under Review "im- Wilderness defines tions. *8 "[ajctions proved and maintained” as taken agree meeting keep parties physically by open to 4.The stan- man to the road traffic”; compliance dards in the IMP vehicular outlined ensures defines "mechanical nonimpairment machinery mandate. See power or with FLPMA’s "[u]se means” as of hand Reply Wilderness Br. Montana Association's or tools.” 2; Answering Defendants-Ap- Br. of Federal case, 11-35818, pellees, Should not to we at We therefore 3. this turn out be the No. 30. bring purposes appeal at that an that the assume MWAcould time assume for of this
996 they tempo- ways unless are within the Monument’s six WSAs.
activities WSAs RMP, closing do create surface disturbance then some rary adopted and not of fa- permanent placement involve the ways designating roads and and others as “any is new WSAs, cilities. Surface disturbance Within the the RMP closes open. requir- vegetation soil or disruption of the ways designates miles 27.3 of vehicle and (i.e., recontouring of the ing reclamation seasonally miles open'—14.6 23.8 as miles topsoil, topography, replacement and/or year-round. and 9.2 miles cover).” ap- In plant native restoration of argues MWA that BLM’s decision to standards, “preservation plying these designate ways as violates open these values”—including roadless- wilderness nonimpairment mandate: ness, naturalness, opportuni- and solitude system to designate BLM’s decision and recre- primitive for unconfined ties roads in in new sur- the WSAs results “overriding and “paramount” ation—is the on-the-ground face and disturbance consideration.” changes degrade that will the areas’ wil- standards, general these Consistent with pending derness a final decision values way as “a trace main- the IMP defines ways Congress. from If the 24 miles of solely by passage tained vehicles “ways,” were left alone and remained improved main- which has not been and/or they open not be would motorized means to ensure rel- tained mechanical Monument, they use would not be use,” atively regular and continuous and map, included road system on the ways “may provides that be used and improvements no or maintenance would before, long maintained as as this does as They largely be allowed. would remain impacts impair not cause new that would left landscape unnoticeable on the to suitability.” the area’s wilderness revegetate naturally. But now that the imposes The IMP also re- procedural roads, system ways they miles of are It BLM. states that “BLM quirements on open use, depicted are motorized on to proposals will review all for uses and/or maps, subjected to to facilities within WSAs determine wheth- BLM’s minimum road maintenance re- proposal meets the [nonimpairment] er the quirements. criteria.... facilities found to Uses and/or Montana Wilderness Association’s Opening nonimpairing may permitted be be (record omitted).5 Br. 23 citations In lands under wilderness review. Uses view, “the new will ... MWA’s roads be will impairing facilities found and/or use, subjected they to increased now that be denied.” depicted transpor- are on the Monument’s here, In the RMP BLM be- developing map open public tation gan by conducting inventory at motorized travel.” Id. Monument, WSAs, including the to map use ways. MWA correct increased has existing inventory roads and This values, preexisting potential degrade miles of identified 51.1 vehicle wilderness necessarily IMP constitutes reasonable and authorita- maintenance. therefore also interpretation subjecting implementation reject argument tive MWA’s these FLPMA, Chevron, 1782(c). degrade ways See will 43 U.S.C. Level maintenance U.S.A., Council, Inc., nonimpair- v. Natural Res. Inc. wilderness values violate Def. 842-43, U.S. S.Ct. ment mandate. We instead focus on MWA’s (1984). argument L.Ed.2d 694 that the violates nonim- ways pairment by designating these mandate already open by depicting 5. We have concluded that the RMP them on Monument subject ways maps. Level WSAs to *9 RMP, “[tjravel nonimpairment for example, and thus violate the states that recognizes that in- mandate. FEIS limited would be to existing WSAs roads “vehicular on roads could creased travel ways” and vehicular that “BLM would soils; resulting in increase disturbances to showing publish maps designated areas rutting, soil surface compaction, increased applicable required restrictions.” It subsequent runoff and erosion.” We also roads, trails, BLM to “[ijnventory contention accept, principle, MWA’s that ways” in “publish WSAs and to map [a] ways open depicting as designating road restrictions for area.” each maps fundamentally on BLM them can In the absence of evidence in the record lit- transform them from little-known and designation RMP’s and mapping heavily two-tracks to trafficked tle-used ways of these fundamentally different thoroughfares. accept propo- And we existing from designation and mapping, we that, when sition such a transformation say cannot that BLM’s degrade actions place, may degrade wilder- takes well wilderness values. reject We therefore values, only by producing ness not new argument MWA’s that the RMP violates adjacent surface disturbances on and FLPMA’s nonimpairment mandate. That themselves, by also the routes but interfer- said, being we recognize possibility wildlife, naturalness, ing with solitude and variety that a in- factors—mapping, opportunities primitive and unconfined creased more visitorship, concentrated use recreation. brought by about the closure of more than case, however, In this the record ways half of the in WSAs—could increase not support assertions that MWA’s degrade use and wilderness values.6 Un- fundamentally BLM’s actions will trans IMP, der the is under an ongoing ways by form these significantly increasing obligation to this use monitor and its im- use. The record does not sup therefore pact wilderness and to values take cor- port the conclusion that the RMP will de action if evolving rective use of existing grade wilderness values and violate the ways impacts that “eause[s] new would nonimpairment We reach mandate. this impair the suitability.” area’s wilderness government conclusion because the has recognizes, sys- As RMP road “[t]he evidence, record, presented included could if tem be modified vehicle use traffic ways designated that these as open were conditions patterns change.”7 resource mapped Monument RMP. before RMP, Prior to the lands B. Off-Road Travel by within the Monument were covered two prohibits Proclamation “all motor- plans, management other resource the Ju road, ized and mechanized vehicle use off (1992) Valley Phillips dith RMP except emergency or authorized admin- (1988). HiLine RMP Like the RMP West purposes.” Fed.Reg. at istrative 7361. here, each earlier at issue of these RMPs MWA and TWS contend the RMP ways “designated” open depicted maps. authorizing them on BLM The West violates this HiLine mandate travel pointing By ways 6. out that closures can in- Because MWA shown that the route has not authorized are new uses or facili- open, crease use on we routes that remain do ties, reject argument we also MWA’s suggest impair that route wilder- closures procedural require- BLM violated the IMP’S matter, general presume values. As a we ness proposals ment that all BLM review for uses route overall closures have the effect of or facilities within to determine wheth- WSAs enhancing wilderness values. proposal nonimpairment er a meets the crite- ria.
998 (1976) and the not meet roadless definition BLM ways any that do on vehicle (1991). road. MWA also Engineering definition of 9100 Manual reasonable the RMP violates the mandate argues that plaintiffs are correct feet of by authorizing travel within 50 definition of road is a departure RMP’s WSAs) parking (except roads pur from these other definitions. For arguments in address these camping. We designation, of poses wilderness FLPMA turn.8 roads to that have “im limits routes been proved maintained mechanical of 1. Definition Road means”; ways, “solely by maintained ban, of travel purposes For the off-road vehicles,” of are passage excluded from not only to include the RMP defines roads road, FLPMA’s definition of as explained improved but routes also constructed 94-1163, No. at 17 H.R.Rep. earlier. (ways) and main- routes created two-track (1976), reprinted U.S.C.C.A.N. solely by passage of vehicles. tained Similarly, 6191. the 1991 Engineer It provides: Manual a road a ing defines as route travel is not considered Motorized “maintained for regular continuous road) (off cross-country land way use” and a route that no as “receives when: regular to guarantee maintenance and con n — n travels on The motorized vehicle use.” definition of road tinuous are main- constructed roads that carry adopted by RMP to out the tained the BLM. Constructed Proclamation’s off-road travel ban—defin roads are often characterized with ing roads to include two-tracks maintained slopes. and fill cut solely by the of passage vehicles—indis — place [takes Motorized vehicle use putably departs from these definitions. evident, clearly two-track on] routes nonetheless BLM’s definition. uphold regular with travel and continuous First, the does not passage motorized vehicles over a Proclamation define of years. A period two-track is the terms “road” or “off road.” BLM of is perennial vegetation where de- adopt has therefore discretion reason- scarce, void or where wheel able definitions of these terms. See Kes- depressions are tracks continuous ter, (holding F.2d at that we review yet the soil evident to the casual interpretations executive of orders vegetated. observer and are deference”). Second, “great with it is not added.) (Emphasis FLPMA’s roadless self-evident that defini- apply tion should to the Proclamation’s off- plaintiffs argue that this definition travel FLPMA’s road ban. definition departs road unreasonable because specific context—identifying in a arises from two national definitions of road that purposes ascertaining roadless areas for at the time Clinton existed President is- suitability designation the Proclamation in sued 2001: FLPMA’s their wilder- 1732(a). compliance provision U.S.C. this in BLM’s with the Proclamation is Because FLPMA, subject judicial under corporates review the Proclamation’s terms into provides Secretary FLPMA, which of Interior we need not consider whether manage public princi- lands under “shall judicial subject to Proclamation itself is re ..., multiple yield ples use and sustained City Carmel-By-The-Sea See v. U.S. view. except public that where tract of such land (9th Transp., Dep’t F.3d specific according dedicated to has been uses Cir.1997) (determining whether or executive provisions any other law it shall be review). subject judicial ders were managed in accordance with such law.” 43 *11 adopted 2003, reason to that BLM though policy There no assume this in ness. is pur- applies for all years FLPMA’s definition two after President Clinton issued beyond specifically that context—or poses Proclamation, BLM a issued draft EIS Third, policies. to off-road travel 1999, in year more than a before Proc- of the Proclama- implementation RMP’s See Availability lamation. Notice of of the tion’s ban is not unreason- off-road travel Off-Highway Draft Vehicle Environmental able on Consistent with the evi- its face. Impact Amendment, Statement Plan Proclamation, dent intent of the (Nov. 61,932 15,1999). Fed.Reg. 64 designat- restricts motorized use to plainly (cid:127) H-9113 BLM Guidelines Invento- for routes, ed off-road travel prohibiting thus (1985). 2001, rying In when Roads Presi- of the ordinary in the sense term. Proclamation, dent Clinton issued the Finally, although the RMP’s definition guidelines inventorying BLM’s for roads contrary Engineering FLPMA and primitive included two-track routes and above, it is Manual definitions discussed solely by (ways) pas- roads maintained seemingly also several rel- consistent with sage of vehicles. evant road that exist- definitions of either reasons, For say these we cannot that development ed or at the time the were by BLM its defining abused discretion Proclamation was issued: ways purposes roads to include vehicle (cid:127) (1992) Phillips RMP Valley Judith of the Proclamation’s off-road travel ban. (1988). At the and West HiLine RMP implementation BLM’s of the off-road Proclamation, time of the the lands travel ban therefore violate Monument up now make were covered FLPMA'.9 Valley Phillips the Judith West management Con- plans. HiLine resource Parking 2. within 500 Feet of Roads RMP, sistent these with the dispersed The RMP allows parking two- plans defined a road include “[a] camping ways within 50 feet of roads and track four- route established from use of Monument, within the other than WSAs. period wheeled a vehicles over of time.” provides: It (cid:127) Policy BLM Governing Off-road WSAs, Outsidé motorized or (2003). 2003, Lands in Montana In June adjacent may park mechanized vehicles (OHV) adopted BLM an off-road vehicle provide to a road reasonable safe policy for Montana and the Dakotas. Con- public for the pass. distance Howev- RMP, sistent with the Monument the OHV er, must be 50 feet of parking within policy defines off-road travel to exclude Parking encouraged road. will be at use “clearly motorized vehicle evident previously used sites. reg- two-track single-track routes with WSAs, In motorized mecha- passage ular use and continuous of motor- Al- period years.” may only park ized vehicles over a nized immediate- vehicles reject arguments also alternative See Providence Med. Ctr. TWS’s stances. Yakima v. Sebelius, (9th Cir.2010) that the of road RMP’s definition constitutes F.3d 1190 course, unexplained change an curiam) (”[W]hile (per pro should choosing relied on irrelevant factors when actions, vide a basis for we 'will reasoned its adequately definition and BLM failed to uphold clarity ideal a decision of less than if explain adopting its defini- reasons this path may reasonably agency’s dis ” colleague agree dissenting tion. We with our (citation omitted) (quoting McFar cerned.’ complete that BLM could have offered a more (9th Kempthome, land v. F.3d explanation, expla- conclude but we that the Cir.2008))). adequate nation was under the circum- land, the cherry parcels of limits of which way or thereof adjacent to a vehicle ly all cases be confined to the small- shall road. stem care proper area with the compatible est rule violates this MWA contends objects pro- management of the to be travel ban off-road the Proclamation’s add- (emphasis tected.” U.S.C. ar- further MWA allowing travel off-road. ed). justified by cannot be the rule gues that pur- “administrative the Proclamation’s Here, Proclamation declares *12 the within parking exception because poses” Breaks Upper Missouri River “[t]he ways “necessary not feet of and is roads spectacular contains a National Monument safely turn public the to for members of array geological, and histori biological, Associa- around.” Montana Wilderness Fed.Reg. at objects interest.” 66 cal Br. 27. Opening tion’s de proceeds The to Proclamation objects, para these in a including scribe to arguments the government’s The area: graph referring to the Bullwhacker with notwithstanding, agree we contrary area of the monument rule au The Bullwhacker parking 50-foot MWA that the country on Record of contains some of the wildest travel. See thorizes off-road Decision, Plains, important Environ the as well as Off-Highway all Great Vehicle Proposed During and stress-in Impact mental Statement wildlife habitat. Montana, months, North Da Plan elk ducing Amendment mule deer and winter (2003) (treating river, and Dakota 5 kota South up area from the and move to the feet camping of roads trails within to antelope sage grouse move down travel”). “cross-country as a form of The the area the benchlands. from however, that agree government, with the also heads the coulees and breaks per a rule constitutes parking the RMP’s sites, archeological contain historical of the Proclama interpretation missible teepee rings from and remnants of his “administrative exception. purposes” tion’s toric trails to abandoned homesteads pro rule parking that the BLM concluded by used lookout sites Meriwether safe for the vides a reasonable distance Lewis. to The Proc public pass parked vehicle. concluded that the Bull- Id. at 7360. BLM lamation not “administrative define an “object” area was not whacker purposes,” interpretation and BLM’s Monument, objects although within term, broad, unreason although is not protected. Bullwhacker area were that the rule ad able. BLM’s conclusion argues required that BLM was MWA safety also rea vances interests of is object the Bullwhacker area as an protect dispersed camping rule sonable. Proclamation, Monument. the Proclama therefore does violate however, is as whether the ambiguous tion’s travel ban. off-road Bull- President to make the intended itself, opposed wild- whacker area to the Area C. Bullwhacker archeological habitat and historic life Act authorizes the Pres- Antiquities area, an ob- sites within the Bullwhacker by public proclamation ident “to declare ject interpreta- of the BLM’s Monument. landmarks, prehistoric historic historic deference, is entitled to see tion therefore structures, objects and other of historic or Kester, conclude 652 F.2d at and we upon scientific interest that are situated interpretation that its is reasonable. Gov- the lands owned or controlled alterna- appears argue in the MWA the United States to be nation- ernment of that, area monuments, if the may part as a tive even Bullwhacker al reserve Monument, object itself is not of the II. NEPA protect objects RMP fails to Impacts A. Cumulative Specifically, within the Bullwhacker area. complains permits ‘major the RMP “For
MWA federal actions significantly area, airstrips three in the Bullwhacker affecting quality of the human environ- arguing airstrips that these are inconsis- ment,’ 4332(2)(C), 42 U.S.C.
tent with the Proclamation. MWA relies required to prepare an environmental on a letter written BLM official (‘EIS’).” impact statement Klamathr-Sis- 2002: BLM, kiyou Wildlands Ctr. v. 387 F.3d time, At this we are not interested in (9th Cir.2004). “An EIS is a officially re-establishing airstrips, these thorough analysis potential environ- nor establishing airstrips new within the mental impacts ‘provide[s] full and currently managing monument. We are fair significant discussion of environmental the monument under the Presidential impacts and ... inform[s] decisionmakers *13 Proclamation and the June 2001 State public and the of the reasonable alterna- Director's Interim Guidance for manag- tives which would avoid or minimize ad- ... ing the Monument.... Though impacts verse or quality enhance the of the these documents are airstrips silent on (alterations human environment.’” Id. in monument, within the they we don’t feel 1502.1). original) (quoting § 40 C.F.R. An would be in conformance with either. EIS must also consider cumulative im- argument MWA’s this letter bound pacts: unpersuasive. BLM is In very the next Cumulative impact impact is the on the said, are, however, sentence the letter “We environment which results from in- the begin about to scoping the issues for a impact cremental of the action when (RMP) management resource plan for the added to past, present, other and rea- monument, and we will consider address- sonably foreseeable future actions re- ing the need for airstrips these in the (Federal gardless of agency what or RMP.” non-Federal) person undertakes such complains MWA also that the RMP in- other impacts actions. Cumulative can airstrips creases and roads within the Bull- individually result from minor but collec- compared whacker area when tively significant taking place actions inventory of the area. inventory The 1979 period over a of time. roads, only showed 12 miles of whereas the approximately authorizes 46 miles of 40 C.F.R. 1508.7. system MWA, however, roads in the area. Here, argues MWA that BLM explain why does not 1979 should be used failed to take a hard look at cumulative as a for assessing compliance baseline with by effects neglecting analyze how a host the Proclamation. If the baseline is (in of activities by authorized the RMP issued, when the Proclamation was then cluding airstrips, six over 400 miles of the RMP reduces the number of roads jet boats), conjunction roads and with (and within the Bullwhacker area the Mon- grandparented already occurring activities ument generally). operative question, in the Monument (especially gas oil and moreover, many is not how roads are au- development grazing), may and livestock thorized, but rather whether Monument cumulatively impact objects of the Monu objects protected. are MWA has not (1) ment, including the “most viable” elk shown that BLM failed to consider or ade- (2) Montana; quately protect herd in objects “premier” within one of the the Bullwhacker area. big sheep horn herds the continental (3) States; transportation; management; Missouri fire wilder- Upper
United areas; conditions; Scenic River study Wild social National ness (UMNWSR). than around economic conditions—rather of the objects Although Monument. level, faults most basic MWA
At the does not include sections devot- the FEIS not include sections FEIS because elk, exclusively sheep, bighorn ed exclusively impacts to cumulative devoted objects of the Monu- UMNWSR other elk, opportunities for bighorn sheep ment, objects FEIS discusses these proper- MWA solitude in UMNWSR. analysis Bighorn sheep, example, that a should ly points throughout. out NEPA the feder- driving informed the laws in the only are discussed section ad- being al reviewed. See Or. Natural wildlife, action impacts on but dressing fish BLM, 1092, 1109 Ass’n v. 625 F.3d Desert grazing, also in the sections on livestock oil (“[B]ecause (9th Cir.2010) places ‘NEPA gas, transportation, social conditions obligation to consider upon and economic conditions. BLM’s decision aspect of the environmen- every significant in this fashion to structure FEIS was action,’ the con- impact proposed tal agency’s within the discretion. made the substan- siderations relevant complied with NEPA Whether driving proposed tive statute action turns on the thus substance FEIS analysis.” must be addressed NEPA its question rather than form: boils omitted) (citation (quoting Yankee Nu- Vt. look down to whether BLM took a hard at Corp. Res. clear Power v. Natural Def. *14 UMNWSR, Council, 519, 553, the 1197, impacts big- on elk and 435 U.S. 98 S.Ct. (1978))). sheep. L.Ed.2d 460 The Proclama- that BLM did horn We conclude so. Antiquities on and the Act focus the tion “objects,”
protection suggests so MWA 1. UMNWSR that the FEIS have included sec- should 1976, Congress seg- In added a 149-mile tions—including analy- impact cumulative of the Missouri to the National ment River to each of the ses—devoted Monument’s System. and Scenic BLM objects. Wild River has managed support the a long range river to however, agency, An has discretion from experiences, of recreational motor- deciding present how to and organize primitive use to more forms of ized recre- in an League information EIS. See Wil opportunities ation that afford for visitors Mountains Biodi derness Defenders-Blue solitude, and the to RMP continues man- Serv., Project versity v. Forest U.S. river balance in age the corridor with this (9th Cir.2008) (holding F.3d the explains, “[bloating mind. As FEIS that an “is free to consider cumula just the Missouri River for the sake of any in the to use aggregate tive effects occurs, being on the water but the beauty appropriate. It procedure other deems the solitude the route are along highly and [agency] not for this court to tell the many to In important visitors.” addition include, nor specific what evidence to how discussing opportunities to for motorized it.”). Here, present specifically recreation, FEIS describes river specific sub structured FEIS around valley’s “unique beauty and abundant wild- resources; jects—air quality; cultural fish “pristine scenery wildlife; life” and identifies its geology paleontology; and and resources; solitude and recre- soils; water; opportunities and for vegetation; visual resources; unconfined setting in an ex- realty; [as] live ation forest lands and recreation; grazing; gas; tremely important oil values.” stock Monument; argues that BLM failed to consid- BLM’s decision to mo- MWA limit values, these es- impacts er cumulative on torized to certain speeds, watercraft di- solitude: opportunities for pecially rections, seasons; days the week to river river mile 104 mile From the noise impacts and visual of motorcraft instance, BLM authorizes an air- for purposes; used for administrative the ef- roads, strip, eight dis- motorized use on fects of natural wells on gas visitors seek- motorboats, camping, vehicle persed ing a primitive setting; the effect of clos- camp. 2 developed level In addi- boat ing percent within of roads the area on tion, preexisting gas develop- oil visitors; walk-in opportunities the ef- ment, (fencing, grazing livestock water fects of dispersed camping rule and developments) utility rights-of-way signage; authorizing the effect six air- occurring within or on corridors are also strips on opportunities primitive for a ex- adjacent segment of the land to this wild perience; potential impact of future River. development campsites) (e.g., along Opening Montana Wilderness Association’s river; designate per- BLM’s decision acknowledges Br. 35. MWA cent of the river to most restrictive impacts of FEIS considers the each of (VRM visual management category Class individually uses faults BLM for these but I); and the of roads airstrips effects failing to impact. consider their cumulative primitive on experiences. is correct that the FEIS does MWA Thus, notwithstanding the absence of exclusively a section include devoted impact cumulative specifi- section devoted (or river impacts cumulative on the to cu- cally opportunities for solitude along the impacts opportunities mulative for soli- river, certainly the FEIS considers the corridor). within tude the river roads, airstrips, planes, effects of motor- FEIS, however, takes a hard plainly look watercraft, signs, camping ized and devel- impacts. these FEIS at discusses opment on river; opportunities solitude and quality sight, in the sound visual primitive experience. smell effects of motorized boats on recreational experiences; *15 river the effects of primitive impacts proposed opportu- of the RMP on campsites the signs primitive and on na- corridor, the nities for solitude in river river; of ture the the effects of ranches therefore, in are “set forth sufficient detail river; the power lines visible from the and promote to an informed assessment of en- and of personal noise disturbance effects policy vironmental considerations and watercraft; the noise and intrusion of flo- public agency personnel choices the and primitive on the natural and set- atplanes upon review of Final Environmental the river; of the decision to limit ting BLM’s Impact Lands v. Statement.” Council permits use to control the vol- commercial (9th Cir.2005). Powell, 1019, 1028 395 F.3d adjacent of use on river and ume the campsites; impose BLM’s to decision Sheep Bighorn 2. Elk and two-night camping sight limit to alleviate BLM for to failing MWA also faults season; during busy the impacts and sound provide impacts analysis a cumulative on impose BLM’s decision to Leave No Trace complains elk that the habitat. It camping settings; rules in primitive airstrips, hundreds of miles authorizes five signage protect to BLM’s decision to limit boats, roads, jet utility rights-of-way, of quality primitive setting; visual and the sites, developed livestock recreational prohibit personal BLM’s decision water- to grazing gas development and oil with- and and 146 miles of floatplanes craft on the range, but the falling within the the elk winter FEIS segment 149-mile river Range these B. Reasonable of Alternatives impact of the combined not consider again, elk Once the local herd. actions on statements “shall impact Environmental technically the FEIS correct: MWA signifi full and of provide fair discussion exclusively to devoted contains no section impacts and shall in cant énvironmental on elk. impact of these uses the cumulative public and the form decisionmakers alternatives which would avoid reasonable FEIS, im- however, the considers or impacts or minimize adverse enhance fences, roads, motorcraft, pact planes, of quality the of the human environment.” gas and devel- campsites and oil developed end, § 40 C.F.R. 1502.1. To this EIS generally, and these opment on wildlife “Vigorously explore objectively and shall extensively focus on elk. analyses alternatives,” all reasonable so as evaluate of road closures FEIS discusses effect “present impacts to the environmental of habitat; history; on elk elk habitat alternatives com proposal elk; the on impacts development of water form, defining parative sharply thus elk; management posi- fire on effect of providing a clear basis for issues of limit- impacts on elk winter habitat tive among options by choice the decisionmak activi- ing surface-disturbing disruptive public.” 1502.14. er and C.F.R. winter; fences on elk effect of ties “The existence of a viable but unexamined wildlife; from other to elk benefits im alternative renders an environmental developments resulting in addi- new water inadequate.” pact statement Westlands sources tional distribution water Interior, Dep’t Dist. v. Water U.S. habitat; on seasonal restrictions wetland (9th Cir.2004) (quoting F.3d Mor right-of-way winter protect construction FAA, v. ongo Band Indians Mission big game signifi- species; habitat for Cir.1998)) (internal (9th 161 F.3d corridors requiring right-of-way cance omitted). marks quotation af- vegetation habitat to native restore Here, airstrip BLM considered six construction; possibility limiting ter alternatives. Two alternatives would have hunting protect big game from horn would opened airstrips, one have disturbance; of devel- the effect excessive seven one would opened airstrips, have oped big game; sites on recreational opened airstrips, six one would have wildlife, gas on drilling of oil and impact year-round five opened airstrips elk, including adopted and restrictions seasonally one would have sixth impact; of roads minimize the the effect opened airstrips. no No alternatives con wildlife; game and the effect big opening zero and six air sidered between FEIS, wildlife. more- airstrips on record, strips. argues On this TWS *16 over, analy- impacts includes a cumulative range BLM failed to consider a reasonable wildlife, analysis sis this for fish and and view, airstrip In TWS’s alternatives. specific subsection devoted includes failure “BLM’s to consider ‘middle Thus, big game, including elk. even airstrip that would ground’ alternative a cumula- though the FEIS not offer majority of opened have less than a elk, analysis specific to BLM tive effects Appellants’ airstrips was unreasonable.” impacts adequately considered cumulative Br., 11-35821, No. at 57. Opening on Monument’s elk population. BLM disagree. Although could reasons, opened that BLM For similar we hold have included alternative bighorn on zero than six alterna- adequately impacts considered more than but less tives, compel NEPA did sheep. First,
do so.
BLM did consider a mid-
included in or eligible for
inclusion
alternative—one that
five
range
opened
Register
National
Historic
[of
Places]’
airstrips year-round
the 10
and a sixth
Advisory
‘afford the
Council on Historic
Second,
airstrip seasonally.
the touch- Preservation ... a
opportunity
reasonable
inquiry
stone of the NEPA
is “whether an
regard
to comment with
to such undertak
”
selection and discussion of alterna-
EIS’s
ing.’ Muckleshoot Indian
v.
Tribe
U.S.
decision-making
tives fosters informed
Serv.,
(9th
800,
Forest
177 F.3d
Cir.
public participation.”
informed
Westlands
1999)
curiam) (second
(per
alteration in
(internal
Dist.,
quo-
Water
lation and explains an area. The Manual that cultural resource data and available survey is useful when literature, “[[Intensive a most management-focused, overview, necessary precisely it is to know what interpretative, narrative given historic in a properties exist data.” Manual synthesis of the BLM area.” The BLM Manual 8110.2.21.C. This relies on 8110.2.21.A.1. alternative survey frequently III is the Class most rather than entail- existing information employed inventory. method of See additional, survey- ing on-the-ground BLM Manual 8110.2.21. ing. BLM Manual states that “[a] inventory is most useful for class I BLM has also issued an instruction comprehensive a view all gaining complying memorandum for with the historic, archaeological, cul- known preparing transportation NHPA when places tural traditional within a plans. See BLM Instruction Memoran- area, large such the area (Dec. 2006).10 dum No. 2007-030 land-use or an EIS.” plan covered a suggests memorandum that I sur- a Class Id. vey plan will a transportation suffice when (cid:127) survey “probabilistic proposes quo, A II is a maintain the status but Class inventory that a survey” “statistically
field or Class III should be used based plan a new in- when authorizes roads or sample survey” that in charac- “aid[s] existing creased traffic on roads: probable density, diversi- terizing ty, proper- of cultural Proposed and distribution designations that will not area.” BLM change ties in an Manual or reduce are un- will OHV use likely to adversely prop- This alternative affect historic 8110.2.21.B.1. involves require erties and will intensive surveying, but it less on-the-ground relies These include evaluating rather ev- sampling than identification efforts. (1) designations allow continued use ery of an The BLM square foot area. (2) route; an existing impose new class II sur- provides Manual “[a] (3) route; limitations existing on an vey improving useful for cul- is most (4) route; an open close area or travel large tural information in a resource (5) closed; a keep keep area closed area, planning pur- or EIS such as open open.... an area poses, systematic insufficient where Where expecta- there is reasonable work has done in identification been tion that a proposed designation will past.” Id. shift, expand concentrate or travel into (cid:127) survey A Class III is an “[i]ntensive” areas properties where historic are like- survey professionally that involves “a ly adversely affected, to be III Class conducted, thorough pedestrian survey inventory compliance with section ... target entire area intended NHPA], areas [of the focused on prop- to locate and record all historic where are likely adverse effects to oc- “provides managers erties” cur, required prior designation. resource with specialists cultural added). (emphasis Id. complete proper- record cultural 8110.2.21.C.1, Here, ties.” Manual C.3. survey. BLM conducted a I Class Wind, requires This an on-the- The with alternative contracted North face, moreover, plans generally. parties, ap- 10. On this All its instruction memorandum applies only transportation plans governing pear to view this memorandum as authorita- (OHV) parties off-highway vehicle travel. tive. however, agree, governs transportation
1007 information, pre- Inc. to conduct literature review other into an of cul- analysis surveys of The lit- the Monument. tural in vious resources the FEIS. The FEIS showed erature obtained North Wind acknowledged most of the sur- earlier past, projects 336 had exam- veys dated to the 1960s and 1970s and 44,270 acres approximately ined only percent covered of the Monu- projects generally area. These ment area. the 1960s and and had dated to 1970s MWA and TWS contend that BLM 383 historic identified sites within failed to amake reasonable and faith good Monument, public including 192 sites on identify effort historical and cultural In addition to these identifying land.11 argues resources. MWA that BLM was sites, previously recorded North Wind required to conduct a III inventory Class potential 135 additional historic identified in the where areas historic most sites are by reviewing sites General Land Office (the corridor) likely to found river topographic maps. North also Wind in which historic areas sites are most ethnographic reviewed literature identi- likely damaged (roads, destroyed to be fy Native con- spiritual areas of American sites). airstrips dispersed camping cern. North BLM con- Neither Wind nor argues required TWS that BLM should be any surveys. Class II ducted or Class III to conduct a Class III inventory for the reported Wind of its North the results areas, most which says affected TWS are in a North 164-page report. review open road corridors.12 recommendation report included a Wind’s government argues reli- that BLM’s survey: that BLM conduct a Class III I survey ance a Class was reasonable The review concludes with the observa- faith, good citing and in several consider- tion that over half the record- sites were ations: Generally, ed in the 1960s and 1970s. (cid:127) on BLM’s Relying 2006 instruction proper descrip- these forms lack site site memorandum, government maintains tions, site sketches and topographic inventory that a I Class was sufficient maps with site locations. The combina- RMP because the allows use of continued information, tion of minimal site incon- existing than airstrips roads rather survey dynamic sistent methods and a authorizing new roads and airstrips. probably Missouri River that has eroded that, government by authorizing contends away known cultural and ex- resources only roads suggests existing airstrips, new cultural posed resources any III that a Class cultural resource inven- does not authorize new surface distur- tory be conducted to bance could mar [Monument] historic sites and locate and record cultural objects. resources
today’s standards.
(cid:127)
government emphasizes
that con-
BLM has
done so.
surveys
II
ducting
or Class III
Class
375,000-acre
report
BLM reviewed the North
Monument would be both
Wind
incorporated
findings,'
time-consuming
well
expensive.
its
as
375,000
ty’s
plaintiffs
standing
argument
11. The Monument
includes
that the
about
lack
land, 80,000
private
acres of
acres
claims.
to assert these
See Friends of
39,000
Inc.,
Earth,
Servs.,
land and
acres of state land.
v. Laidlaw Envtl.
Inc.
183,
693,
U.S.
S.Ct.
would be plete Class II and III surveys Class in the user-created routes the Monument have future, connection with site-spe- future—in analyzed.” Reply Appellants’ never been cific involving decisions new disturbances Br., 11-35821, at No. such as the designation of new roads—
Fourth, even if the RMP is viewed as does not substitute for a more intensive continuing existing routes rather than des- survey plaintiffs now. The point out that ones, ignating new the 2006 instruction the threat to historic posed by sites is provides memorandum that a Class III existing uses; authorized the govern- inventory required there is a “[w]here promise ment’s projects, to evaluate future expectation proposed reasonable that a though important, nothing to assuage shift, designation will concentrate or ex- those concerns. pand prop- travel into areas where historic light considerations, In of these we hold likely to adversely erties are be affected.” that BLM failed to make a reasonable The RMP out of closes miles 605 miles effort identify historical cultural (and ways of roads and closes another 111 resources. Consistent with BLM’s own seasonally), miles closes four out of 10 documents, policy required BLM is to con- (and airstrips seasonally) closes a fifth roads, duct III ways Class inventories for dispersed camping allows within 50 feet of that airstrips surveyed have not been opposed a road as to within 300 feet under previously surveyed or were ago. decades pre-RMP rules. These consolidations will Because we hold that the NHPA requires pre-RMP concentrate traffic on the re- III surveys solely Class respect with roads, maining designated airstrips and roads, ways and airstrips, govern- camping areas. survey- ment’s concerns about the costs of RMP, therefore, concentrates trav- 375,000-acre ing the entire Monument do el into areas in which historic sites will apply. adversely be recog- affected. The FEIS recognize We that North Wind also rec- that damage nizes increased use can his- III survey ommended a Class for the Mis- objects says torical and sites. It River, souri observing dynamic that “a potential exists for “[t]he vehicle traffic Missouri River that has probably eroded camping and associated activities to affect away known cultural resources and ex- resources, cultural particularly prehistoric posed new cultural suggests resources sites. Possible effects include artifact III inventory Class cultural resource displacement, breakage, compaction, and ... conducted to locate and record cultural stratigraphic mixing of various cultural today’s resources to standards.” These assemblages, as well as erosion increased resources, threats to historic and cultural potential, exposure, site and vandalism.” however, from arise the natural flow of the adds that “[o]pen FEIS roads used river, not from activities authorized during periods may wet grow width Thus, although survey RMP. a Class III through avoidance muddy deeply stretches, given the river is advisable for the reasons may rutted which in- lead to Wind, say ground creased North we cannot disturbance and increase prehistoric required precursor the risk to NHPA it as a sites and historic to issu- adjacent ruins to travel routes.” The ance of the RMP. roads, airstrips that ways have not
B. Consultation III subject surveys. been to recent Class regulations require agen NHPA Each its own party shall bear costs of with state and historic cies to consult tribal appeal. throughout § 106 preservation officers 800.4(a)-(c), §§ process. 36 C.F.R. See PART; IN AFFIRMED REVERSED 800.16(f). 800.6(a), 800.5(a), reject PART; IN REMANDED. argument BLM violated these TWS’s by failing to close
regulations
GOULD,
here
consult
Judge, concurring in
Circuit
ly
State
Preser
with the Montana
Historic
part
dissenting
part:
*21
(SHPO). The
vation Officer
record shows
majority opinion’s
I concur in the
discus-
that
coordinated and collaborated
BLM
Policy
sion of the National Environmental
developing
with
in
the cultural
the SHPO
Act and the National Historic Preservation
analysis for the
and the
resources
EIS
join
majority’s
Act. I
the
also
discussion of
To the extent the
involve
RMP.
SHPO’s
(RMP)
Plan’s
Management
the Resource
limited,
was
ment was
this
the SHPO’s
compliance
Policy
the Federal
with
Land
choice, not the result of
failure to
BLM’s
(FLPMA)
and Management Act of 1976
opportunities
provide the SHPO with
to
and the Proclamation insofar as it con-
In
to
participate.
contrast
Pueblo
San
of
(1)
cludes
RMP did not
that the
violate the
States,
856,
dia
v. United
F.3d
858-62
requirement
Study
that
Areas
Wilderness
(10th Cir.1995),
Queehan
Tribe Fort
of
(2)
unimpaired
remain roadless and
Depart
Reservation v.
Yuma Indian
U.S.
allowing parking
dispersed
camp-
Interior,
1104,
the
755 F.Supp.2d
ment of
ing within
50 feet of roads
reasonable
(S.D.Cal.2010),
in which the
1118-19
administrative-purpose
under
excep-
the
consulting parties complained about a lack
tion to the Proclamation’s off-road travel
consultation,
of adequate
the SHPO has
part company
majori-
ban. But I
with the
complained
not
here.
BLM con
Because
ty’s
that the RMP’s
conclusion
definition of
sulted the SHPO and afforded the SHPO
“road” for
of the
purposes
off-road travel
participate
to
in
opportunity
pro
the
cess,
ban is reasonable.
regula
there was no violation of the
Tribe,
tions.
Te-Moak
adopted in the RMP. State in- concern about the expressed
Montana routes in the RMP “two-track”
clusion of because contributed
definition of “road” density given road “very high was on its designation based ” country.’ its ‘wild remote nature and ISLAMIC COUNCIL OF SHURA concern that it is State Montana’s shows CALIFORNIA; SOUTHERN Council adop- at debatable whether BLM’s least on American Islamic Relations-Cali- expansive tion more “road” defini- fornia; of San Islamic Center Gabriel comports pur- tion with the Proclamation’s Valley; Hawthorne; Islamic Center have pose. might settled the debate Center; West Coast Islamic Human why reasons for giving sound Development Assistance and Interna- protects definition of “road” Monu- RMP’s tional, Inc.; Siddiqi; Muzammil objects. But it did not. ment Ayloush; Syed; Shakeel Hussam Mo- Aleem; Husain, hammed Rafe Abdul argues that the ratio- The Government Plaintiffs-Appellees, nale the RMP’s “road” definition can through references to BLM discerned v. inventory guidelines Manual 9113 and road FEDERAL BUREAU OF INVESTIGA- *23 definition adopted that its adheres TION; Department of United States defining guidance national roads. This Justice, Defendants-Appellants. argument the mark. misses The issue is No. 12-55305. not that the RMP’s definition of “road” is itself; defining in and of unreasonable Appeals, United States Court of may two-tracks roads to include be reason- Ninth Circuit. Rather, many able contexts. the issue Argued and Submitted June 2013. a broad adopted that BLM definition of explaining “road” without how that defini- July Filed protects objects tion best goals behind
advances the off-road yields A common-sense
travel ban. review the RMP’s
concern that definition could
impair objects. This these concern is not in the by anything
alleviated record
explains supports the conclusion
including “two-tracks” the RMP’s defini-
tion of “road” advances Proclamation’s I
goals preservation protection. that, record,
would hold on this the RMP’s
definition of “road” violates the Proclama-
tion, FLPMA, APA and the because BLM
has a satisfactory expla- “articulate[d]