Onda v. Jeff Rose

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OREGON NATURAL DESERT Nos. 18-35258

ASSOCIATION, 18-35282

Plaintiff-Appellant/

Cross-Appellee, D.C. No.

3:09-cv-00369-PK

v.

JEFF ROSE, Burns District OPINION

Manager, BLM; U.S. BUREAU OF

LAND MANAGEMENT; INTERIOR

BOARD OF LAND APPEALS;

RHONDA KARGES, Field Manager,

Andrews Resource Area, BLM,

Defendants-Appellees,

and

HARNEY COUNTY,

Intervenor-Defendant-Appellee/

Cross-Appellant.

Appeals from the United States District Court

for the District of Oregon

Paul J. Papak II, Magistrate Judge, Presiding

Argued and Submitted March 8, 2019

Portland, Oregon

2 ONDA V. ROSE

Filed April 25, 2019

Before: Susan P. Graber and Marsha S. Berzon, Circuit

Judges, and Eduardo C. Robreno,* District Judge.

Opinion by Judge Graber

SUMMARY**

Environmental Law

The panel affirmed in part, and vacated in part, the district

court’s judgment upholding the Bureau of Land

Management’s decisions about the route network for

motorized vehicles in the Steens Mountain Cooperative

Management and Protection Area.

The Bureau issued two plans: the Steens Mountain Travel

Management Plan (“Travel Plan”) and the Steens Mountain

Comprehensive Recreation Plan (“Recreation Plan”). The

Oregon Natural Desert Association challenged the Recreation

Plan, and the Interior Board of Land Appeals (“Board”)

approval of the Travel Plan, under the National

Environmental Policy Act of 1969 (“NEPA”), the Federal

Land Policy Management Act of 1976, and the Steens

*

The Honorable Eduardo C. Robreno, United States District Judge for

the Eastern District of Pennsylvania, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ONDA V. ROSE 3

Mountain Cooperative Management and Protection Act of

2000. Haney County, Oregon intervened.

The panel held that the Bureau satisfied its obligation to

consult the Steens Mountain Advisory Council before issuing

the Recreation Plan, and therefore, its action was not arbitrary

and capricious in that respect. The panel also held that even

if the degree or mode of consultation was insufficient, any

error was harmless to Harney County.

The panel held that the Board acted arbitrarily and

capriciously by changing its definition of “roads and trials”

without providing a reasoned explanation for the change. The

panel vacated the Board’s approval of the Travel Plan, and

remanded. The panel left it to the agency, in the first

instance, to explain its change in position or to craft new

definitions and explain them.

The panel held that the Board acted arbitrarily and

capriciously by affirming the Bureau’s issuance of the Travel

Plan because the Bureau failed to establish the baseline

environmental conditions necessary for a procedurally

adequate assessment of the Travel Plan’s environmental

impacts. The panel vacated the Board’s approval of the

Travel Plan and remanded with instructions for the Board to

remand the Travel Plan to the Bureau for reconsideration.

Because the panel concluded that the Travel Plan was

procedurally deficient under NEPA, it did not reach the

substantive challenges to the Travel Plan under the other Acts

and did not decide whether the Bureau must prepare an

environmental impact statement for the Travel Plan.

The panel held that the Bureau acted arbitrarily and

capriciously in issuing the Recreation Plan because the

4 ONDA V. ROSE

Bureau failed to establish the baseline conditions necessary

for it to consider the significant environmental impacts to the

Steens Mountain Area. The panel vacated the Recreation

Plan and remanded.

The panel vacated the cost award to the Bureau.

COUNSEL

Peter M. Lacy (argued), Oregon Natural Desert Association,

Portland, Oregon; Thomas C. Buchele, Earthrise Law Center,

Portland, Oregon; David H. Becker, Law Office of David H.

Becker, Portland, Oregon; for Plaintiff-Appellant/Cross-

Appellee.

Dominic M. Carollo (argued), Yockim Carollo LLP,

Roseburg, Oregon, for Intervenor-Defendant-Appellee/Cross-

Appellant.

Sean E. Martin (argued), Assistant United States Attorney;

Kelly A. Zusman, Appellate Chief; Billy J. Williams, United

States Attorney; United States Attorney’s Office, Portland,

Oregon; for Defendants-Appellees.

ONDA V. ROSE 5

OPINION

GRABER, Circuit Judge:

This litigation arose from the Bureau of Land

Management’s decisions about the route network for

motorized vehicles in the Steens Mountain Cooperative

Management and Protection Area (“Steens Mountain Area”).

The Bureau issued two plans: the Steens Mountain Travel

Management Plan (“Travel Plan”) and the Steens Mountain

Comprehensive Recreation Plan (“Recreation Plan”).

Plaintiff Oregon Natural Desert Association (“ONDA”)

challenged the Recreation Plan, and the Interior Board of

Land Appeals’ (“Board”) approval of the Travel Plan, under

the National Environmental Policy Act of 1969 (“NEPA”),

the Federal Land Policy Management Act of 1976

(“FLPMA”), and the Steens Mountain Cooperative

Management and Protection Act of 2000 (“Steens Act”).

Harney County intervened to defend the Board’s approval of

the Travel Plan, but also cross-claimed against the Bureau to

challenge the Recreation Plan as arbitrary and capricious.

The district court upheld both agency actions. Reviewing de

novo, San Luis & Delta-Mendota Water Auth. v. Locke,

776 F.3d 971, 991 (9th Cir. 2014), we affirm in part, vacate

in part, and remand.

A. Consultation with the Advisory Council

The Bureau satisfied its obligation to consult the Steens

Mountain Advisory Council before issuing the Recreation

Plan, so its action was not arbitrary and capricious in that

respect. 5 U.S.C. § 706(2)(A). Although the Bureau must

make any decision “to permanently close an existing road” or

“restrict the access of motorized or mechanized vehicles on

6 ONDA V. ROSE

certain roads” in the Steens Mountain Area “in consultation

with the advisory council,” 16 U.S.C. § 460nnn-22(c), the

Steens Act does not specify how the Bureau must consult

with the Advisory Council. The Advisory Council has no

power to make management decisions for the Steens

Mountain Area or to veto the Bureau’s management

decisions. See id. § 460nnn-51(a) (establishing the Advisory

Council solely “to advise” the Secretary of the Interior in

managing the Steens Mountain Area).

Here, the Bureau opened the public comment period for

the revised Recreation Plan Environmental Assessment

(“EA”) on January 12, 2015. The Bureau formally briefed

the Advisory Council on the Recreation Plan about two

weeks later, during meetings in which the Bureau gave

Advisory Council members copies of each route analysis and

discussed the project. At the end of the meetings, the

Advisory Council suggested that the Bureau should “use the

information” from the meetings and act as it saw fit. In short,

the Bureau adequately consulted the Advisory Council.

Even if the degree or mode of consultation were

insufficient, any error was harmless to the County. The

County responded to the revised EA months before the

Bureau issued the final Recreation Plan decision and Finding

of No Significant Impact (“FONSI”) in April 2015. The

County cannot explain how the Bureau’s purported failure to

consult the Advisory Council more extensively “caused the

agency not to be fully aware of the environmental

consequences of the proposed action, thereby precluding

informed decisionmaking and public participation, or

otherwise materially affected the substance of the agency’s

decision.” Idaho Wool Growers Ass’n v. Vilsack, 816 F.3d

1095, 1104 (9th Cir. 2016).

ONDA V. ROSE 7

B. Definition of “Roads and Trails”

The Board acted arbitrarily and capriciously by changing

its definition of “roads and trails” without providing a

reasoned explanation for the change. Encino Motorcars, LLC

v. Navarro, 136 S. Ct. 2117, 2125–26 (2016). The Steens Act

prohibits the use of motorized vehicles “off road,” but also

authorizes the use of motorized vehicles on “roads and trails,”

without defining those terms. 16 U.S.C. § 460nnn-22(b)(1).

The Board reconciled this seeming contradiction “by

concluding that since the statute clearly meant to allow [the

Bureau] to designate roads and trails as open to motorized

travel, the prohibition against motorized off-road travel

logically can only mean that motorized travel that does not

occur on either a road or a trail is prohibited.”1 Although the

Steens Act does not use the term “route,” the Board used that

more generic term throughout its decisions to encompass

“roads and trails.”

In its 2009 decision on the Travel Plan, the Board decided

that there exists “inherent incongruity in determining that

routes are ‘obscure,’ or difficult or impossible to identify on

the ground, and concluding that opening them to motorized

use is consistent with the Steens Act.” In other words, the

Board determined that a route that is “difficult or impossible

to identify on the ground” is neither a road nor a trail under

the Steens Act. The Board thus reversed the Bureau’s

decision to allow motorized travel on 36 miles of Obscure

Routes.

But in its 2014 remand decision on the Travel Plan, the

Board reversed course and sua sponte overturned its own

1

ONDA agrees with this interpretation.

8 ONDA V. ROSE

decision to close the Obscure Routes. For the first time, the

Board defined “route” to mean something that “existed as a

matter of record” in October 2000—when Congress enacted

the Steens Act2—“and that might again be used in the future,

despite a present difficulty in physically tracing [it] on the

ground.” The “record” to which the Board referred included

sources such as hand-drawn maps and testimony from local

ranchers and grazing permittees, whether those maps or

testimony existed in 2000 or only later.

Of course, agencies may change their policies over time.

But an agency must “at least ‘display awareness that it is

changing position’ and ‘show that there are good reasons for

the new policy.’” Encino Motorcars, 136 S. Ct. at 2126

(quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502,

515 (2009)). The Board failed to do that. The Board did not

explain, for example, what led it to alter its earlier decision or

why the new approach was more consistent with the text of

the Steens Act. It also did not explain why it could rely on a

“record” that was created after the effective dates of both the

Steens Act and the FLPMA and that consisted largely of

representations made by interested local parties. See id.

at 2127 (discussing how the agency might have justified its

choice). Because the Board acted arbitrarily and capriciously,

we vacate its approval of the Travel Plan and remand.

Because the Steens Act leaves room for agency discretion

in this area, such that the Board or the Bureau could redefine

“road” or “trail” on remand even if we endeavored to define

those terms first, Nat’l Cable & Telecomms. Ass’n v. Brand

2

Or, for routes within the Steens Mountain Wilderness, that existed

as a matter of record in October 1976, when Congress enacted the

FLPMA.

ONDA V. ROSE 9

X Internet Servs., 545 U.S. 967, 982 (2005), we do not define

the terms here.3 We leave it to the agency, in the first

instance, to explain its change in position or to craft new

definitions and explain them.

C. The Travel Plan

The Board also acted arbitrarily and capriciously by

affirming the Bureau’s issuance of the Travel Plan. Even

assuming that the Bureau properly inventoried all “roads and

trails” in the Steens Mountain Area, the Bureau failed to

establish the baseline environmental conditions necessary for

a procedurally adequate assessment of the Travel Plan’s

environmental impacts. “Without establishing the baseline

conditions” before a project begins, “there is simply no way

to determine what effect the project will have on the

environment and, consequently, no way to comply with

NEPA.” Great Basin Res. Watch v. BLM, 844 F.3d 1095,

1101 (9th Cir. 2016) (brackets omitted) (quoting Half Moon

Bay Fishermans’ Mktg. Ass’n v. Carlucci, 857 F.2d 505, 510

(9th Cir. 1988)).

Nothing in the Travel Plan EA establishes the physical

condition of the routes, such as whether they are overgrown

with vegetation or have become impassable in certain spots.

Indeed, the Bureau acknowledged that it included some

routes in the inventory even though its staff could not find

those routes on the ground. Despite that lack of information,

the Travel Plan EA authorized most routes for “Level 2"

3

We note, however, that the Bureau referred to the routes in the

Travel Plan and the Recreation Plan as both “routes” and “roads.” On

remand, it would be prudent for the Bureau to clarify whether all the

routes are roads, or whether some routes are trails.

10 ONDA V. ROSE

maintenance, which involves mechanically grading a route

and “brushing” (removing) roadside vegetation. Such

“routine” maintenance can dramatically change a lightly used

route and its surroundings. Thus, without understanding the

actual condition of the routes on the ground, the Bureau could

not properly assess the environmental impact of allowing

motorized travel on more than 500 miles of routes, or of

carrying out mechanical maintenance on those routes. The

Bureau “had a duty to assess, in some reasonable way, the

actual baseline conditions” in the Steens Mountain Area, Or.

Nat. Desert Ass’n v. Jewell, 840 F.3d 562, 569 (9th Cir.

2016), but it failed to perform that duty.

NEPA does not require the Bureau to accept ONDA’s

assessment of the environmental consequences of the Travel

Plan. It does, however, require the Bureau to “articulate[] a

rational connection between the facts found and the choice

made,” instead of relying on an ipse dixit assessment of

environmental impacts over a contrary expert opinion and

data. Pac. Coast Fed’n of Fishermen’s Ass’ns v. Blank,

693 F.3d 1084, 1091 (9th Cir. 2012) (internal quotation marks

omitted). Ordinarily, we must defer to an agency’s technical

expertise and reasonable choice of methodology, because

NEPA “does not require adherence to a particular analytic

protocol.” Or. Nat. Desert Ass’n v. BLM (“ONDA v. BLM”),

625 F.3d 1092, 1121 (9th Cir. 2010) (quoting Ass’n of Pub.

Agency Customers, Inc. v. Bonneville Power Admin.,

126 F.3d 1158, 1188 (9th Cir. 1997)). And an agency need

not measure “actual baseline conditions in every situation—it

may estimate baseline conditions using data from a similar

area, computer modeling, or some other reasonable method.”

Great Basin, 844 F.3d at 1101. But here, the Bureau did not

use any method or estimate—aside from making generic

statements about roads in the Steens Mountain Area—to

ONDA V. ROSE 11

establish baseline conditions. We “cannot defer to a void.”

ONDA v. BLM, 625 F.3d at 1121.

The EA itself “contains virtually no references to any

material in support of or in opposition to its conclusions,”

even though the EA “is where the [Bureau’s] defense of its

position must be found.”4 Blue Mountains Biodiversity

Project v. Blackwood, 161 F.3d 1208, 1214 (9th Cir. 1998)

(citing 40 C.F.R. § 1508.9(a)). The EA and the previous

Environmental Impact Statement (“EIS”) to which it is tiered

contain only a cursory analysis of the project’s impact on

noteworthy aspects of the Steens Mountain Area, such as the

sage grouse population and the spread of noxious weed

infestations. We have warned that “general statements about

‘possible’ effects and ‘some risk’ do not constitute a ‘hard

look’ absent a justification” for why an agency could not

supply more “definitive information.” Id. at 1213 (internal

quotation marks omitted). The EA and the EIS lack any such

justification. Accordingly, we vacate the Board’s approval of

the Travel Plan, and remand with instructions for the Board

to remand the Travel Plan to the Bureau for reconsideration.

Because we conclude that the Travel Plan is procedurally

deficient under NEPA, we do not reach ONDA’s substantive

challenges to the Travel Plan under the Steens Act and the

4

To the extent that the Board relied on “Route Analysis Forms” that

the Bureau submitted on remand, that reliance was arbitrary and

capricious. Whatever the forms’ contents, the Bureau created them years

after it released the Travel Plan EA and FONSI in 2007. Thus, the public

never saw the forms and never had an opportunity to comment on them,

“frustrating NEPA’s goal of allowing the public the opportunity to play a

role in the decisionmaking process.” Great Basin, 844 F.3d at 1104

(internal quotation marks and alteration omitted).

12 ONDA V. ROSE

FLPMA. Likewise, we do not decide whether the Bureau

must prepare an EIS for the Travel Plan.5

Having addressed the problems we have

identified, the [Bureau] may decide to make

different choices. NEPA is not a paper

exercise, and new analyses may point in new

directions. As a result, although ONDA also

raises concerns regarding alleged substantive

and procedural flaws within the Plan, we do

not reach those issues today. The problems it

identifies may never arise once the [Bureau]

has had a chance to see the choices before it

with fresh eyes.

ONDA v. BLM, 625 F.3d at 1124.

D. Recreation Plan

The Bureau acted arbitrarily and capriciously in issuing

the Recreation Plan. Here, too, the Bureau failed to establish

5

That said, we disagree with the Bureau and the County that an EIS

is unnecessary because the Travel Plan simply maintained the “status

quo.” Not so. The Travel Plan added about 70 miles of motorized routes

to the transportation network in the Steens Mountain Area and closed

1.23 miles of routes to motorized access. By contrast, “status quo” cases

involve the “mere continued operation of a facility.” See Burbank Anti-

Noise Grp. v. Goldschmidt, 623 F.2d 115, 116 (9th Cir. 1980) (per curiam)

(holding that the FAA did not need to prepare an EIS before providing

financial assistance that would allow an entity to purchase and continue

operating an existing airport); see also Upper Snake River Chapter of

Trout Unlimited v. Hodel, 921 F.2d 232, 235 (9th Cir. 1990) (holding that

the Bureau of Reclamation did not need to prepare an EIS before adjusting

the flow of water from a dam, because the agency had been occasionally

adjusting the water flow “for upwards of ten years”).

ONDA V. ROSE 13

the baseline conditions necessary for it to “carefully consider

information about significant environmental impacts” to the

Steens Mountain Area. N. Plains Res. Council, Inc. v.

Surface Transp. Bd., 668 F.3d 1067, 1085 (9th Cir. 2011).

This time around, the Bureau made Route Analysis Forms

and aerial photographs available during the comment period.

But neither the photographs nor the forms themselves reveal

any details about the condition of the Obscure Routes. Each

form starts with the following prompt: “Please describe the

general setting of the area including precipitation and

vegetation and compare this data to an average precipitation

year. Provide any other pertinent information.” Yet, even

though the Bureau seemingly recognized the importance of

establishing baseline conditions (such as the vegetation on

each route), the completed forms fail to provide any details

responsive to the prompt. Without establishing baseline

conditions for the Obscure Routes, the Bureau could not have

analyzed the environmental impacts of the Recreation Plan

properly. Great Basin, 844 F.3d at 1101.

At some point after the public comment period closed, the

Bureau attached ground photographs for a few Obscure

Routes to the forms; the photographs show details about

vegetation and the condition of the routes themselves. Such

late analysis, “conducted without any input from the public,”

impedes NEPA’s goal of giving the public a role to play in

the decisionmaking process and so “cannot cure deficiencies”

in an EA. Id. at 1104. And, because the Bureau added the

Obscure Routes back to the Steens Mountain transportation

network only over the 2014–15 winter, while the Steens

Mountain was largely inaccessible, ONDA did not have a

chance to survey the Obscure Routes and respond to the

photographs. Thus, the Bureau’s failure to make the

14 ONDA V. ROSE

photographs available during the public comment period

“‘caused the agency not to be fully aware of the

environmental consequences of the proposed action, thereby

precluding informed decisionmaking and public

participation.” Idaho Wool Growers, 816 F.3d at 1104.

Accordingly, we vacate the Recreation Plan and remand.

For the reasons explained above, we do not reach

ONDA’s substantive challenges to the Recreation Plan and

we do not decide whether the Bureau should have prepared an

EIS for the Recreation Plan. ONDA v. BLM, 625 F.3d

at 1124.

E. Costs

Because we vacate and remand as to ONDA’s NEPA

claims, we also vacate the $4,937.99 cost award to the

Bureau. Fed. R. Civ. P. 54(d)(1).

AFFIRMED in part, VACATED in part, and

REMANDED. The parties shall bear their own costs on

appeal.