Petition for Writ of Certiorari — Utah Shared Access Alliance v. Carpenter (No. 06-1144)

Suprane Cou:t. U.S.

FILE O

061144FEB16 2007

No.

. OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

UTAH SHARED ACCESS ALLIANCE, PETITIONER

GLENN CARPENTER, IN HIS CAPACITY AS MANAGER OF

THE SALT LAKE FIELD OFFICE OF THE BUREAU OF LAND

MANAGEMENT, ET AL., AND SOUTHERN UTAH

WILDERNESS ALLIANCE, ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

PAUL W. MORTENSEN

Counsel of Record

Hanks & Mortensen, I.C.

8 Fast Broadway, #740

Salt Lake City, Utah 84111

(SOL) 363-0940

Attorneys for Petitioner

CURRY & TAYLOR ®@ WASH O.C. @1202! 393 414 @uwsscinfFo.cam

1

QUESTION PRESENTED

The Tenth Circuit affirmed the Utah district court’s -

ruling upholding the Bureau of Land Management’s non-

emergency restrictions of mountain biking, off-highway

vehicle and dispersed camping uses, even though such

uses were authorized by BLM’s governing land use plans

and BLM’s restrictions were implemented without first

amending such land use plans according to section 202, 43

U.S.C. § 1712, of the Federal Land Policy and

Management Act (FLPMA), 43 U.S.C. § 1701 et seq.

FLPMA section 302(a), 48 U.S.C. § 1782(a),

requires that agency management actions conform to land

use plans unless and until the plans are amended in

accordance with FLPMA section 202. Norton v. Southern

Utah Wilderness Alliance, 542 U.S. 55, 69 (2004).

FLPMA section 202 mandates that land use plans shall be

amended utilizing public participation and comment in a

systematic interdisciplinary process. 43 U.S.C. §§ 1712(a),

1712(c)(2)&(9), 1712(f); 43 C.F.R. §§ 1610.5-3(c), 1610.5-5.

BLM’s non-emergency management actions herein

clearly failed to conform to governing land use plan

standards. Petitioner sued contending that BLM’s

actions violated section 302(a)’s management conformity

mandate and that BLM’s de facto amendment of the land

use plans denied Petitioner of its right to participate and

comment in the section 202 public, systematic

interdisciplinary, amendment process mandated by

Congress.

The Tenth Circuit upheld BLM’s management

restrictions, ruling that FLPMA section 302(b)’s “prevent

unnecessary or undue degradation” provision, 43 U.S.C. §

1732(b), provides an exemption to FLPMA section 202’s

public participation planning mandate and to FLPMA

section 302(a)’s management conformity mandate. The

u

Tenth Circuit opinion, thus, eviscerates Congress’ public

participation and management conformity mandates, and

directly violates Norton, presenting an important

question of federal law that has not been, but should be

settled by this Court.

One question is presented:

Whether, in the absence of an emergency, BLM

may apply FLPMA section 302(b)’s “prevent unnecessary

or undue degradation” provision to eviscerate FLPMA

section 202’s public participation mandate and FLPMA

section 302(a)’s management conformance mandate.

it

PARTIES TO THE PROCEEDING

Petitioner: Utah Shared Access Alliance, a nonprofit

advocacy group

Respondents: Glenn Carpenter, in his capacity as

manager of the Salt Lake Field Office of the Bureau of

Land management; Maggie Wyatt, in her capacity as

manager of the Moab Field Office of the Bureau of Land

Management; Sherwin Sandberg, in his capacity as the

manager of the Monticello Field Office of the Bureau of

Land Management; Sally Wisely, in her capacity as Utah

State Director of the Bureau of Land Management; Gale

A. Norton, in her capacity as Secretary of the Interior;

Kathleen Clarke, in her capacity as Director of the

Bureau of Land Management*

Intervenor-Respondents: Southern Utah Wilderness

Alliance, a nonprofit advocacy group; The Wilderness

Society, a nonprofit advocacy group; Great Old Broads for

Wilderness, a nonprofit advocacy group; Wildlands, CPR,

a nonprofit advocacy group

Rule 29.6

Utah Shared Access Alliance is a 501(c)(3) public

advocacy group, does not issue stock, and does not have

shareholders. Utah Shared Access Alliance has no

parent, subsidiaries or affiliates.

*Since this case began: Sandra Meyers has replaced Sherwin

Sandberg as the current manager of the Monticello Field Office.

Selma Sierra has replaced Sally Wisely as Utah State _—_ Director of

the Bureau of Land Management; Dirk Kempthorne has replaced

Gale A. Norton as Secretary of Interior

Ww

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF AUTHORITIES

OPINIONS BELOW

CONCLUSION

APPENDIX

Circuit Court Opinion

District Court Memorandum Opinion & Order Re:

Supplemental Complaint Challenging the April

24, 2003 Box Elder County Order

District Court Memorandum Opinion & Order .........00-+- 38a

CG Ce iiiicinbincisetipsteseianctbicicianacaniacation . aia 64a

CI TC TIE a iiiitecsittaichctetaicenininsnacsigiinnsineisieii 66a

Relevant Provistons [Nvolved..........cseccceccesscsssscesssssecsescceees 68a

1999 BLM Box Elder County Order

2000 BLM Bow Elder County Order ........ccccccssecceeseseeeereeeees 90a

Vv

2001 BLM Grand County Camping Order .....sccecereeeeeee: 94a

2001 BLM Grand County Travel Restriction

2003 BLM Box Elder County Order

1999 BLM San Juan County Order

BLM National Policy Handbook 10/25/88, ch. 1.b.2.......

BLM Instruction Memorandum No. UT 2004-061

v1

TABLE OF AUTHORITIES

CASES

CHEVRON V. NATURAL RESOURCES DEFENSE

COUNCIL, INC., 467 U.S. 837, 842 (1984)

CRAWFORD FITTING Co. V. J.T. GIBBONS, INC., 482

U.S. 437, 445 (1987)

GOOD SAMARITAN HOsp. V. SHALALA, 508 U.S. 402,

409 (1993)

GUIDRY V. SHEET METAL WORKERS NAT'L PENSION

FUND, 493 U.S. 365, 375 (1990)

HOUSE V. U.S. FOREST SERV., 974 F. SUPP. 1022,

1035 (E.D. KY. 1997)

HUMBOLDT COUNTY V. UNITED STATES, 684 F.2D

1276, 1283 (9TH CIR. 1982)

HYNES V. GRIMES PACKING CO., 337 U.S. 86, 116-23

CI cccnincevsctsavibsninksonssssnhinniitestbeiliansiainaniingtaseabmaes AAAS AS ia 7

INTERNATIONAL PAPER Co. V. QUELLETTE, 479 U.S.

I 13

MORALES V. TRANS WORLD AIRLINES, 504 U.S. 374,

384-85 (1992)

NATIONAL WILDLIFE FEDERATION V. BURFORD,

835 F.2D 305, 323 (D.C. CIR. 1987)

OR. NATURAL RES. COUNCIL FUND V. FORSGREN,

252 F. SUPP. 2D 1088, 1099 (D. OR. 2008) ....................-eceeeeee 15

SOUTH DAKOTA V. YANKTON SIOUX TRIBE, 522 U.S.

529, 346 (1998)

STATE OF UTAH V. BABBITT, 137 F.3D 1193, 1215-1216

(10TH CIR. 1998)

UNITED STATES V. GRANDERSON, 511 U.S. 39, 56

(1994)

UTAH SHARED ACCESS ALLIANCE V. CARPENTER,

463 F.3D 1125 (LOTH CIR. 2006)

WHITMAN V. AMERICAN TRUCKING ASSOCIATIONS,

INC., 531 U.S. 457, 485 (2001)

STATUTES

42 U.S.C.

SE ia Maks FD winssinseitescsihdinciccininicibibisictiidiiniiianciaiichatiigeuigi 13

43 U.S.C. § 1701

43 U.S.C. § 1701(a)(7)

43 U.S.C. § 1702(d)

43 U.S.C. §

43 U.S.C.

er Eris BAe NIUE D itcsoniiatignicitininctiiniiteainnoeliadiinemcsapammiiaiiadapietadas 2

43 U.S.C. § 1712(e)(2)

43 U.S.C. § 2. °. f)

43 U.S.C. § 1732(a)

43 U.S.C. § 1732(b)

43 U.S.C. § 1739(e)

5 U.S.C. § 701

5 U.S.C. App. 2 § 1

H. R. Conf. Rep. No. 94-1724

REGULATIONS

DOC AR, BT :cssnicninsniscinibcsssiueiisaieiicciaiiiasaniiiidianlbadinaal 19

40 C.F.R. § 1506.11

40 C.F.R. § 1508.9(a)

40 C.F.R. § 1508.9(b)

43 C.F.R. § 1610.2(a)

43 C.F.R. § 1610.1(c)

CPR: DMT. i eurcicca eae, 1

43 C.F.R. § 1610.5-3(a)

43 C.F.R. § 1610.5-3(¢)

43 C.F.R. § 1610.5-5

GBT Be. FD catisntisnsessincteinivaetscacemmmedianags 3

1x

Ee ae eee 5, 6

EE ee 5, 6, 7

SI TE STII vicshecivnsetstenisubodsessensessesenenssovessoveretsesensestnece 9

43 C.F.R. §§ 1610.2(f)

43 C.F.R. $8 1610.5-3(¢)

43 C.F.R. $8 1610.5-5

43 C.F.R. §§ 8341.2, passim

alld cchesdcsncenunsicciinitbeadeaesdesienoosennvens 18

EEE eee 19

51 Fed. Reg. 15618 (Apr. 25, 1986)

63 Fed. Reg. 110

8364.1 / 40 C.F.R. § 1506.11

]

OPINIONS BELOW

The opinion of the Tenth Circuit Court is

reported at Utah Shared Access Alliance v. Carpenter,

463 F.3d 1125 (10° Cir. 2006). The district court’s

August 28, 2003 opinion is not reported. The district

court’s December 9, 2004 opinion is reported at 348 F.

Supp. 2d 1265.

JURISDICTION

The Tenth Circuit filed its decision on

September 19, 2006, and entered an order denying

Petitioner’s Petition for Rehearing with Suggestion for

Hearing En Banc on November 21, 2006. This Court

has jurisdiction under 28 U.S.C. § 1831, which

authorizes the Court to hear actions arising under the

Constitution, laws and treaties of the United States (in

this case the Federal Land Management and Policy

Act, 43 U.S.C. § 1701 et seq.), and, the Administrative

Procedures Act, 5 U.S.C. § 701 et seqg., which provides

jurisdiction to review final agency actions.

RELEVANT PROVISIONS INVOLVED

The following FLPMA sections are set out

verbatim in the appendix: FLPMA section 103(d) [43

U.S.C. § 1702(d)], FLPMA section 202 [43 U.S.C. §

1712], FLPMA section 302(a) [48 U.S.C. § 1732(a)],

FLPMA section 309(e) [48 U.S.C. § 1739(e)]. All of

these sections concern FLPMA’s public participation

mandate. Additionally, FLPMA section 302(a) contains

FLPMA’s management conformity mandate. Also set

out verbatim in the appendix is FLPMA section 302(b)

2

[43 U.S.C. § 1732(b)], which contains the “prevent

unnecessary or undue degradation” clause.

STATEMENT

1, FLPMA repealed numerous public land

laws considered obsolete and modified thousands more,!

providing the Secretary of Interior, and, thereby, the

Bureau of Land Management (BLM), with a single

comprehensive management directive. FLPMA

mandates that BLM lands be managed for multiple use

and sustained yield and FLPMA requires BLM to

provide a balance of uses. 43 U.S.C. § 1701(a)(7),(8), &

(12).

To assist BLM in fulfilling this balancing

obligation, FLPMA requires BLM to prepare and

maintain an “inventory of all public lands and their

resource and other values,” 43 U.S.C. § 1712(a), and to

prepare land use plans, 43 U.S.C. § 1712, which BLM

calls resource management plans (RMPs). In

developing or amending RMPs, BLM must observe the

principles of multiple use and sustained yield, 43 U.S.C.

§ 1712(c)1), use a “systematic interdisciplinary

approach,” 438 U.S.C. § 1712(c)(2), and consider

environmental impacts, 43 C.F.R.§ 1610.2(a).

Importantly, Congress mandated that BLM

must “give Federal, State, and local governments and

the public adequate notice and opportunity to comment

upon and participate in the formulation of plans and

programs relating to the management of the public

lands.” FLPMA section 202(f), 43 U.S.C. § 1712(. To

emphasize its insistence upon public participation,

‘ H.Rep. No. 94-1163, at 1 (1976); Reprinted in 1976 U.S.C. 6175.

3

Congress reiterated its mandate numerous times

throughout FLPMA.’

Congress further mandated that BLM’s

management of the public lands must conform to the

standards set forth in its RMPs. FLPMA section 302(a),

43 U.S.C. § 1732(a), mandates that BLM, “shall manage

the public lands under principles of multiple use and

sustained yield, in accordance with the land use plans

developed ... under section 202 of this Act ...” emphasis

added.

2. BLM has adopted numerous RMPs for its

Utah lands. These land use plans have designated

extensive lands as “open” to mountain bike, off-

highway vehicle (OHV), and motor-assisted dispersed

camping uses.’ Such are the cases with the Box Elder

RMP, adopted April 1986, which governs BLM lands in

Box Elder County, and the Grand RMP, adopted June

1985, which governs BLM lands in Grand County and a

portion of San Juan County. T0839, T1471.°

Soon after the Grand RMP was adopted in 1986 a

significant increase in mountain biking, camping and

OHV recreation occurred in the Grand RMP area. This

increase continued into the 1990’s presenting BLM with

legitimate management challenges. However, BLM

regularly responded to _ these challenges’ by

* These sections are quoted at page 10-12.

‘“Open area means an area where all types of |off road] vehicle use

is permitted at all times, anywhere in the area ...” 43 C.F.R. §

8340.0-5(f).

‘ Dispersed camping is camping unrestricted to designated sites or

campgrounds.

Appendix to the Petition references as _a. Tenth Circuit appendix

references as T_.

" Record numbers of visitors were expected in the 1998 tourism

season. T1513.

4

implementing RMP-authorized actions’ and by plan

amendments/environmental assessments (EAs)* under

FLPMA section 202. By 1996 the increase in recreation

was stabilizing. BLM’s 2001 amendment/EA to the

Colorado Riverway Recreation Plan amendment

stated, "Overall visitor use iv the Moab area has been

relatively stable for the past five years, but appears to

be shifting somewhat from non-motorized to motorized

use.” T1656.

BLM’s Box Elder County lands, located chiefly

on the extremely lonely desert west of the Great Salt

Lake, have never been subject to a recreational boom

like that in the Grand RMP area, which surrounds

Moab, Utah. There are no cities or towns west of the

Great Salt Lake. However, as in Grand County, BLM

has restricted huge areas of lands from OHV use

contrary to RMP “open” standards.

3. In 1999 BLM adopted a statewide policy

goal to change RMP categories from "open" to "limited

to designated roads and trails" for all public lands in

Utah except specifically designated "open" areas, such

as sand dune areas. T1245, T1722. BLM determined to

fast-track changes to mountain biking, camping and

OHV management standards, thereby evading

FLPMA’s public participation, “systematic

interdisciplinary approach,” and environmental analysis

requirements. To evade FLPMA sections 202 and

302(a), BLM construed its authority under FLPMA

* 1987 “Off-Road Vehicle Implementation Plan.” T1446.

* Utah's Coiorado Riverway Recreation Area Management Plan

(1992), itself amended by Amendment | in May, 2001. T1581. Mill

Creek Canyon Management Plan (Feb. 2001)(T1551), incorporating

four EAs from 1996, 1999 and 2000 resulting in findings of no

significant impact and also a Document of NEPA Adequacy.

T1556-57, T1568.

-

oO

section 302(b)’s “prevent unnecessary and undue

degradation” clause to override FLPMA sections 202

and 302(a). T0374.

4, This petition concerns summary

restrictions issued by BLM to implement its statewide

goal. In 1999 and 2000 BLM issued orders (88a, 90a)

restricting 550,000 “open" acres in Box Elder County to

“limited to existing routes” and “limited to designated

routes” standards recommended by an ad hoc advisory

group. T0811. 90a. In 2001 BLM restricted a quarter

million "open" acres in Grand County by issuing two

orders (94a, 98a) eliminating mountain bike and OHV

uses, except on existing routes, and eliminating related

dispersed camping.

The 1999 and 2000 Box Elder County orders and

the two 2001 Grand County orders each cited as

authority 43 C.F.R. § 8341.2 and/or 43 C.F.R. § 8364.1.

88a(90a), 90a(93a), 94a(98a), 98a(104a). 48 C.F.R. §

8341.2 provides:

Notwithstanding the consultative provisions in

Sec. 8342.2(a), where the authorized officer

determines that off-road vehicles are causing or

will cause considerable adverse effects upon soil,

vegetation, wildlife, wildlife habitat, cultural

resources, historical resources, threatened or

endangered species, wilderness suitability, other

authorized uses, or other resources, the

authorized officer shall immediately close the

areas affected to the type(s) of vehicle causing

the adverse effect until the adverse effects are

eliminated and measures implemented to

prevent recurrence.

6

43 C.F.R. § 8341.2 applies only to OHVs. In

contrast, BLM relied on 43 C.F.R. § 8364.1 to restrict

mountain bike and camping uses, as well as OHV uses.

43 C.F.R. § 8864.1 authorizes administrators to “close

or restrict use of designated public lands” in order to

“protect persons, property, and public lands and

resources.” Subpart (b)(3) of this regulation requires

that each order shall “[s]pecify the period of time

during which the closure or restriction shall apply.”

5. Petitioner filed this action on October 21,

2001, challenging, inter alia, the two 2001 Grand

County orders and the 1999 and 2000 Box Elder County

orders. The Grand County orders made no claim of

emergency. Though announced as emergency actions,

the two Box Elder County orders were obviously not

emergency in nature since they were issued to

implement OHV restrictions recommended by an ad

hoc advisory group, never chartered under the Federal

Advisory Committee Act, 5 U.S.C. App. 2 § 1 et seq.

9la.

After Petitioner filed its initial opening brief

with the district court, BLM on April 24, 2003 revoked

its 1999 and 2000 Box Elder County orders, and

simultaneously issued a new order (104a) that

restricted 189,000 acres of “open” lands in Box Elder

County to “limited to designated routes” and closed

over a hundred miles of non-designated existing roads.

T0588-603. In the new order (2003 Box Elder Order),

BLM relied solely on 43 C.F.R. § 8341.2 and did not

assert emergency authority as it had in the 1999 and

2000 restrictions. To support the 2003 Box Elder Order

BLM documented increasing non-emergency OHV

impacts within the 189,000 acre areas. Petitioner,

granted leave to file a supplemental complaint (64a),

la

(any footnotes trail end of each document)

No. 05-4009

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

UTAH SHARED ACCESS ALLIANCE, a Utah non-

profit corporation,

Plaintiff-Appellant,

V.

GLENN CARPENTER, in his capacity as manager of

the Salt Lake Field Office of the Bureau of Land

Management; MAGGIE WYATT, in her capacity as

manager of the Moab Field Office of the Bureau of Land

Management; SHERWIN SANDBERG, in his capacity

as manager of the Monticello Field Office of the Bureau

of Land Management; JERRY MEREDITH, in his

capacity as manager of the Richfield Field Office of the

Bureau of Land Management; SALLY WISELY, in her

capacity as Utah State Director of the Bureau of Land

Management; GALE A. NORTON, in her capacity as

Secretary of the Department of Interior; BUREAU OF

LAND MANAGEMENT; KATHLEEN CLARKE, in

her capacity as director of the Bureau of Land

Management, Defendants-Appellees,

SOUTHERN UTAH WILDERNESS ALLIANCE, a

Utah non-profit corporation; THE WILDERNESS

SOCIETY; WILDLANDS CPR, a non-profit

corporation; GREAT OLD BROADS FOR

WILDERNESS, a non-profit corporation; REDROCK

FORESTS, a Utah non-profit corporation,

Defendants-Intervenors-Appellees.

2a

September 19, 2006, Filed

COUNSEL: Paul W. Mortensen, Hanks & Mortensen,

P.C., Salt Lake City, Utah, appearing for the Plaintiff-

Appellant.

Jeffrey E. Nelson, Assistant United States Attorney

(Paul M. Warner, United States Attorney, with him on

the brief), Office of the United States Attorney for the

District of Utah, Salt Lake City, Utah, appearing for

Defendants-Appellees.

Eric G. Biber, Earthjustice, Denver, Colorado (James

S. Angell, Earthjustice, Denver, Colorado; Stephen

H.M. Bloch, and Heidi J. McIntosh, Southern Utah

Wilderness Alliance, Salt Lake City, Utah, with him on

the brief), appearing for the Defendants-Intervenors-

Appellees.

JUDGES: Before TACHA, Chief Circuit Judge,

McWILLIAMS, Senior Circuit Judge, and O'BRIEN,

Circuit Judge.

OPINION BY: TACHA

OPINION: TACHA, Chief Circuit Judge.

Plaintiff-Appellant Utah Shared Access Alliance

("USA-ALL") is Utah's largest motorized access

advocacy organization. Its members use motorized

vehicles, including off-highway or off-road vehicles

("ORVs"), to access lands throughout Utah that are

managed by the Bureau of Land Management ("BI.M").

After the BLM imposed several restrictions on ORV

use in certain parts of the state, USA-ALL filed this

3a

lawsuit in the District of Utah under the

Administrative Procedure Act ("APA"), alleging

violations of the Federal Land Policy and Management

Act ("FLPMA"), the National Environmental Policy

Act ("NEPA"), the Federal Advisory Committee Act

("KFACA"), and the National Defense Authorization Act

("NDAA"), as well as regulations promulgated pursuant

to those statutes. The District Court concluded that the

BLM had not violated FLPMA, NEPA, or FACA, and

that USA-ALL did not have standing to bring its claim

under the NDAA. The court therefore entered

judgment in favor of the BLM and dismissed the action

under the NDAA. USA-ALL now timely appeals the

District Court's ruling with respect to FLPMA, NEPA,

the NDAA, and certain regulations. We _ take

jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

I. STATUTORY FRAMEWORK

A. Federal Land Policy and Management Act

Nearly one-half of Utah is federal land managed by the

BLM, which is an agency within the Department of

Interior. Norton v. S. Utah Wilderness Alliance, 542

U.S. 55, 58, 124 S. Ct. 2378, 159 L. Ed. 2d 187 (2004)

("SUWA"). FLPMA, codified at 48 U.S.C. § 1701 et seq.,

creates a "versatile framework" for governing the

BLM's management of these lands. Rocky Mountain

Oil & Gas Ass'n v. Watt, 696 F.2d 734, 737-38 (10th Cir.

1982). The statute directs the BLM to manage public

lands "under principles of multiple use and sustained

yield." 483 U.S.C. § 1782(a); see also 48 U.S.C. §

1701(a)(8) (listing purposes and values that should be

considered in the management of public lands).

"Multiple use management’ is a deceptively simple

4a

term that describes the enormously complicated task of

striking a balance among the many competing uses to

which land can be put... ." SUWA, 542 USS. at 58

(citing 48 U.S.C. § 1702(c)). These uses include, but are

not limited to, "recreation range, timber, minerals,

watershed, wildlife and fish, and [uses serving] natural

scenic, scientific and historical values." Jd. The phrase

"sustained yield" refers to the BLM's duty "to control

depleting uses over time, so as to ensure a high level of

valuable uses in the future." Jd. (citing 48 U.S.C. §

1702(h)).

To assist in the management of public lands, FLPMA

requires that the BLM “develop, maintain, and, when

appropriate, revise land use plans.” 43 U.S.C. § 1712(a).

These land use plans, which the BLM regulations

denote "resource management plans" ("RMPs"), see 43

C.F.R. § 1601.0-5(n) (2005), project both the present

and future use of the land. 43 U.S.C. § 1701(a)(2).

Proposed RMPs are subject to a mandatory period of

public notice and comment, see 43 C.F.R. § 1610.2, and,

once adopted, will "guide and control future

management actions and the development of

subsequent, more detailed and limited scope plans for

resources and uses." 43 C.F.R. § 1601.0-2.

FLPMA prohibits the BLM from taking actions

inconsistent with the provisions of RMPs. See SUWA,

542 U.S. at 69; 43 U.S.C. § 1732(a) ("The Secretary shall

manage the public lands . . . in accordance with the land -

use plans developed by him... ."); 43 C.F.R. § 1610.5-3

("All future resource management authorizations and

actions ... shall conform to the approved plan."). When

needed, however, these plans may be amended. 45

C.F.R. § 1610.5-5. To do so, the BLM must prepare an

da

environmental assessment or an environmental impact

statement, see id., and submit the proposed amendment

to public notice and comment in the same way as when

the plan was originally being prepared. 43 C.F.R. §

1610.2.

In any event, RMPs must further the purpose of

FLPMA, which is to ensure that:

the public lands be managed in a manner that

will protect the quality of scientific, scenic,

historical, ecological, environmental, air and

atmospheric, water resource, and archeological

values; that, where appropriate, will preserve

and protect certain public lands in their natural

condition; that will provide food and habitat for

fish and wildlife and domestic animals; and that

will provide for outdoor recreation and human

occupancy and use.

43 U.S.C. § 1701(a)(8). Further underscoring the BLM's

duty to protect the environment is the statutory

requirement that “[iJn managing the public lands the

Secretary shall, by regulation or otherwise, take any

action necessary to prevent unnecessary or undue

degradation of the lands." 43 U.S.C. § 1732(b).

B. Executive Orders and Federal Regulations

Pertaining to ORV Use

ORV use represents one of the multiple uses that the

BLM provides for and must balance in managing the

public lands. In response to increased ORV use on

these lands, in 1972 President Nixon issued an

executive order for the purpose of “establishling]

6a

policies and provid[{ing] procedures that will ensure

that the use of off-road vehicles on public lands will be

controlled and directed so as to protect the resources of

those lands, to promote the safety of all users of those

lands, and to minimize conflicts among the various uses

of those lands." Exec. Order No. 11644, 37 Fed. Reg.

2877 (Feb. 8, 1972). The stated reason for the order was

to further the purpose and policy of NEPA; it

established criteria by which federal agencies were to

develop regulations and administrative instructions for

the designation of areas and trails on which ORVs

would be permitted. /d. § 3. It also required agencies to

"monitor the effects" of ORV use on the public lands

and "[ojn the basis of the information gathered, they

shall from time to time amend or rescind designations

of areas or other actions taken pursuant to this order as

necessary to further the [NEPA]." Jd. § 8.

President Carter, in 1977, issued Executive Order No.

11989, which amended Executive Order 11644 and

strengthened it considerably. See Exec. Order 11989, 42

Fed. Reg. 26959 (May 24, 1977). The amended order

provides that notwithstanding the BLM's designations

of public land use under the applicable RMP, the BLM

"shall... immediately close" any area or route to ORVs

whenever it determines that ORV use "will cause or is

causing considerable adverse effects" to wildlife,

wildlife habitat, and other natural resources. See id. § 2

(amending Exec. Order 11644, § 9(a)). Under the order,

the closure must remain in place until the adverse

effects have been eliminated. /d.

The Department of Interior has adopted regulations to

implement the Nixon and Carte: Executive Orders,

FLPMA, and other federal statutes. See 43 C.F.R. §

7a

8340.0-1 et seq. Under 43 C.F.R. § 8342.1, all public

lands must be designated as open, limited, or closed to

off-road vehicles. See 48 C.F.R. § 8342.1. The

designations must be made to minimize conflicts among

the different users of the lands (i.e., hikers, ORV users,

and birdwatchers). Jd. In addition, care must be taken

to avoid damage to natural resources and to prevent

impairment of wilderness suitability. Jd. The initial

designation of areas as open, limited, or closed to ORVs

is accomplished’ through the resource management

planning process, and it must involve public

participation and consideration of all viewpoints. 43

C.F.R. § 8342.2(a).

Short of promulgating or amending an RMP, the

resource management planning process does not speak

to the manner in which an ORV designation may be

changed. As such, and in order to address Executive

Order 11989, the BLM promulgated a regulation that

requires the agency to close areas to ORV use, without

resort to the route-designation process undertaken

when promulgating or amending an RMP, when the

BLM determines that ORVs "are causing or will cause

considerable adverse effects" to "soil, vegetation,

wildlife, wildlife habitat, cultural resources, historical

resources, threatened or endangered _ species,

wilderness suitability, other authorized uses, or other

resources." 43 C.F.R. § 8341.2(a). Notably, such closures

are nondiscretionary: the BLM "shall immediately

close the areas affected to the type(s) of vehicle causing

the adverse effect until the adverse effects are

eliminated and measures implemented to prevent

recurrence." Jd. (emphasis added). "This provision

creates a separate duty to close without regard to the

designation process; it does not automatically become

8a

inoperative once the Secretary exercises his discretion

to designate the land." Sierra Club v. Clark, 756 F.2d

686, 690 (9th Cir. 1985).

The BLM's authority to close or restrict the use of

public lands notwithstanding the provisions of the

governing RMP is not limited to 43 C.F.R. § 8341.2(a).

It is also permitted to do so in order "to protectpersons,

property, and public lands and resources." 43 C.F.R. §

8364.1. An order closing or restricting the use of public

lands under this authority must identify the lands that

are closed to entry or restricted as to use; specify the

uses that are restricted; specify the period of time

during which the closure or restriction applies; identify

any persons exempt from the closure or restriction;

include a statement of the reasons for the closure; and

be posted and published as provided in the regulation.

43 C.F.R. § 8364.1(b), (c).

C. National Environmental Protection Act

NEPA, 42 U.S.C. § 4321 et seq., was enacted in

recognition of "the profound impact of man's activity on

the interrelations of all components of the natural

environment, [and] . . . the critical importance of

restoring and maintaining environmental quality to the

overall welfare ... of man." 42 U.S.C. § 4331. NEPA

"prescribes the necessary process by which federal

agencies must take a hard look at the environmental!

consequences of the proposed courses of action."

Pennaco Energy, Inc. v. U.S. Dept. of Interior, 377 F.3d

1147, 1150 (10th Cir. 2004) (internal quotations

omitted). At bottom, NEPA "insure|s| a fully informed

and well-considered decision," see Vermont Yankee

Nuclear Power Corp. v. Natural Res. Def. Council, 435

9a

U.S. 519, 558, 98 S. Ct. 1197, 55 L. Ed. 2d 460 (1978),

especially when proposed activity may "significantly

affect|] the quality of the human environment." 42

U.S.C. § 4332(2)(C).

Accordingly, NEPA requires all agencies that propose

a “major federal action" that significantly affects the

quality of the environment to prepare an environmental

impact statement ("EIS") that describes the

"environmental impact of the action; unavoidable

adverse environmental effects; alternatives to the

action; relationship between the short-term uses and

long-term productivity of the affected environment; and

irretrievable and _ irreversible commitments of

resources should the action be implemented." Catron

County Bd. of Comm'rs, N.M. v. U.S. Fish & Wildlife

Serv., 75 F.3d 1429, 1434 (10th Cir. 1996) (citing 42

U.S.C. § 4832(2)(C)(i)-(v)). If the impact of the major

federal action on the environment is uncertain, the

agency must prepare an environmental assessment

("EA") to determine whether the impact will be

significant such that an EIS is required. Jd. (citing 42

U.S.C. § 4332(2)(E)). An EA and/or an EIS is also

required when an RMP is to be amended. See 48 C.F.R.

§ 1610.5-5. Notwithstanding these mandates,

regulations provide for "emergency" exceptions:

Where emergency circumstances make it

necessary to take an action with significant

environmental impact without observing the

provisions of these regulations, the Federal

agency taking the action should consult with the

Council about alternative arrangements.

Agencies and the Council will limit such

arrangements to actions necessary to control the

10a

immediate impacts of the emergency. Other

actions remain subject to NEPA review.

40 C.F.R. § 1506.11. In this way, agencies must comply

with NEPA's requirements "to the fullest extent

possible." 42 U.S.C. § 4332.

D. National Defense Authorization Act

The NDAA is enacted each fiscal year to specify the

budget needs for the Department of Defense. See

National Defense Authorization Act for Fiscal Year

2000, Pub. L. No. 106-65, 118 Stat. 512 (1999). The

NDAA authorizes appropriations for Department of

Defense military activities, including military

construction and defense activities for the Department

of Energy. /d.

On October 5, 1999, Congress enacted § 2815 of the

NDAA, which affected Utah's public lands "adjacent or

near to the Utah Test and Training Range and Dugway

Proving Grounds or beneath Military Operating Areas,

Restricted Areas, and airspace that make up the Utah

Test and Training Range." NDAA § 2815(a), 113 Stat.

512, 852 (1999). The NDAA provided in § 2815(d) that

"the Secretary of Interior may not proceed with any

amendment of any individual resource management

plan" until the Secretary of Defense submits a study to

Congress evaluating the impact of any proposed

changes to land management plans upon military

training, testing, and operational readiness. NDAA §

2815(d), 113 Stat. 512, 852 (1999).

Il. BACKGROUND

lla

At issue is whether the BLM acted within its authority

when it imposed restrictions on ORV use in Box Elder

County and Grand County, Utah, from 1999 through

2003.

A. Box Elder County

Pursuant to FLPMA, the BLM has adopted RMPs for

its Utah lands. The Box Elder RMP was adopted in

1986 and designates the vast majority of land as open to

ORV use. In 1999, however, the BLM published a

Notice of Closure of Public Lands ("1999 Box Elder

Order"), which closed land that had been previously

designated as open. The closure was ordered

seasonally, from January through April, and the

authority for the closure was listed as 43 C.F.R. §§

8341.2 and 8364.1. See 64 Fed. Reg. 22639-02. The order

reads as follows:

Notice is hereby’ given’ that’ effective

immediately, the public lands within Broad

Hollow Unit, Kilgore Basin Unit, Meadows Unit .

. . are seasonally closed from January 1 to April

30 to all motorized vehicle use. The purpose of

this closure is to protect wildlife, including

critical deer and sage grouse habitat.

Exemptions to this closure will apply to

administrative personnel of the Bureau of Land

Management, BLM authorized permittees and

Law Enforcement Personnel. Other exemptions

to this closure order may be made on a case by

case basis by the authorized officer. This

seasonal closure will remain in effect until

further notice.

12a

The authority for this closure is 43 C.F.R. §

8341.2 and 43 C.F.R. § 8364.1.

Id.

In 2000, the BLM published another closure order

("2000 Box Elder Order"), which temporarily closed

selected lands to ORV use regardless of the season. See

65 Fed. Reg. 16410-01. Specifically, the order stated:

Notice is hereby given that’ effective

immediately, selected public lands administered

by the Bureau of Land Management (BLM), Salt

Lake Field Office, within western Box Elder

County are closed to off road vehicle (ORV) (also

commonly referred to as off highway vehicle--

OHV) use on an interim emergency basis. This

action will allow BLM to address concerns

related to unrestricted cross country travel in

the specific places where we now have resource

damage. The purpose of this closure is to protect

wildlife, wildlife habitat, rangeland resources,

soil, vegetation, cultural resources, historical

resources, and other resources from ongoing and

imminent adverse impacts from ORV use... .

This emergency closure will remain in effect

until BLM completes a land use plan amendment

for OHV management.

Id. Like the 1999 Box Elder Order, the 2000 Box Elder

Order cited 43 C.F.R. §§ 8341.2 and &364.1 as

authorizing the closure.

In 2003, after USA-ALL filed this action, the BLM

revoked both the 1999 and 2000 Box Elder Orders and

13a

simultaneously issued a new order. That order ("2003

Box Elder Order") stated that in five areas of the

county ORVs may only be used on designated routes.

The remaining public lands were to be managed

according to the 1986 Box Elder RMP. The 2003 Box

Elder Order provided:

Notice is hereby given that effective

immediately, the Bureau of Land Management

(BLM), Salt Lake Field Office, revokes the

seasonal Notice of C'osure of Public Lands

published on April 27, 1999 (64 FR 22639 (1999))

and the Notice of Closure of Public Lands

published on March 28, 2000 (65 FR 16410

(2000)). Notice is hereby given that effective

immediately, ORV use in the following five areas

of Box Elder County is limited to designated

routes: Devils Playground (9838 acres), Grouse

Creek Mountains (52493 acres), Hogup

Mountains (51698 acres), Pilot Mountains (62654

acres), and Wildcat Hillis (12640 acres). The

remaining public lands in Box Elder County will

be managed according to the Box Elder

Resource Management Plan.

68 Fed. Reg. 20167-02.

Citing only 48 C.F.R. § 8341.2 as the authority for the

closure order, the 2003 Box Elder Order further

provided that "[t]his limitation will remain in effect

until the considerable adverse effects giving rise to this

limitation are eliminated and measures are

implemented to prevent recurrence of these adverse

effects." [d.

B. Grand County

As with Box Elder County, land use in Grand County is

also managed by an RMP adopted in the mid-1980s. In

January 2001, the BLM published two notices related to

ORV use. In the first notice ("Grand County ORV

Restrictions"), ORV use in five areas was to be limited

to existing roads and trails only. The notice cited

FLPMA, Executive Orders 11644 and 11989, and 43

C.F.R. §§ 8341.2 and 8364.1 as its authority, and stated:

This notice places restrictions on travel by off-

road vehicles (ORVs) and mountain bikes on

specific public land administered by the BLM

Moab Field Office.’ These actions are necessary

to halt ongoing impacts and prevent future

degradation of resource values. They are being

implemented on an interim basis to protect

resource values and public safety, pending

revision of the Resource Management Plan

(RMP) for the area administered by the BLM

Moab Field Office.

66 Fed. Reg. 6659-01. The second notice ("Grand

County Camping Restrictions"), which was published in

order to support implementation of the Grand County

ORV Restrictions, provided that camping involving

vehicles would be limited to developed campgrounds

and designated campsites. 66 Fed. Reg. 6658-01. Again,

the BLM cited 48 C.F.R. § 8364.1 as its authority for

the notice.

C. Procedural History

On October 17, 2001, USA-ALL filed this suit in the

15a

District of Utah, contesting implementation of the 1999

and 2000 Box Elder Orders and the two Grand County

restrictions under FLPMA, NEPA, FACA? and the

NDAA. USA-ALL asked the District Court to set aside

the orders and restrictions under the APA. See 5 U.S.C.

§ 706(2). Southern Utah Wilderness Alliance, The

Wilderness Society, Great Old Broads for Wilderness,

and Wildlands CPR were permitted to intervene and

defend the BLM's action. Thereafter, the BLM revoked

the two Box Elder Orders and supplanted them with

the 2003 Box Elder Order. Accordingly, the BLM

argued in its answer to USA-ALL's complaint that the

2003 Box Elder Order mooted any argument related to

the 1999 and 2000 Box Elder Orders. The BLM also

sought to have the complaint dismissed for failure to

state a claim as to the remaining orders. After

extensive briefing and oral argument, the District

Court agreed with the BLM on both issues, and in two

memorandum dispositions dismissed with prejudice all

of USA-ALL's causes of action. This appeal followed.

III. DISCUSSION

A. Standard of Review

Because none of the statutory or regulatory provisions

in question provide for a private cause of action, the

judicial review provisions of the APA govern this suit.

See 5 U.S.C. § 702; Colo. Envtl. Coal. v. Walker, 353

F.3d 1221, 1234-35 (10th Cir. 2004). Under the APA, a

reviewing court may set aside final agency action that

is "arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law." 5 U.S.C. §

706(2)(A); Silverton Snowmobile Club v. U.S. Forest

Serv., 433 F.3d 772, 779-80 (10th Cir. 2006). "(T]he

16a

essential function of judicial review [of agency action] is

a determination of (1) whether the agency acted within

the scope of its authority, (2) whether the agency

complied with prescribed procedures, and (3) whether

the action is otherwise arbitrary, capricious or an abuse

of discretion." Olenhouse v. Commodity Credit Corp.,

42 F.3d 1560, 1574 (10th Cir. 1994). Only the second and

third inquiries will be undertaken in this appeal.’

To determine whether the agency complied with

prescribed procedures, we must review. the

administrative record and applicable law. Id. To

determine whether the agency's decision was arbitrary

or capricious, we must "ascertain whether the agency

examined the relevant data and articulated a rational

connection between the facts found and the decision

made." Jd. (footnote omitted). This standard also means

that there must be a reasoned basis for the agency's

action, and it must be supported by "substantial

evidence." Jd. "Evidence is substantial in the APA

sense if it is enough to justify, if the trial were to a jury,

a refusal to direct a verdict when the conclusion to be

drawn is one of fact." Jd. (internal quotation marks

omitted). Finally, action will be deemed “arbitrary or

capricious" if the explanation for the action “is so

implausible that it could not be ascribed to a difference

in view or the product of agency expertise." /d.

B. The 1999 and 2000 Box Elder Orders are Moot.

Reviewing de novo, see Disability Law Ctr. v. Millcreek

Health Ctr., 428 F.3d 992, 996 (10th Cir. 2005), we agree

with the District Court that USA-ALL's arguments

relating to the 1999 and 2000 Box Elder Orders are

moot. “Mootness is a threshold issue because the

17a

existence of. a live case or controversy is a

constitutional prerequisite to federal court jurisdiction."

McClendon v. City of Albuquerque, 100 F.3d 863, 867

(10th Cir. 1996). Federal courts may adjudicate only

actual controversies; as such a claim or appeal should be

dismissed as moot when the controversy ceases to

exist. United States v. Seminole Nation of Okla., 321

F.3d 939, 943 (10th Cir. 2002). Because the BLM

revoked the 1999 and 2000 orders, any controversy

associated with these orders has been nullified.

Nevertheless, USA-ALL argues that its appeal falls

within an exception to the mootness doctrine because

the BLM's actions are “capable of repetition, yet

evading review." Murphy v. Hunt, 455 U.S. 478, 482,

102 S. Ct. 1181, 71 L. Ed. 2d 353 (1982). This exception

applies "when: (1) the duration of the challenged action

is too short to be fully litigated prior to its cessation or

expiration, and (2) there is a reasonable expectation

that the same complaining party will be subjected to

the same action again." Disability Law Ctr., 428 F.3d at

996 (quotations and alterations omitted). There is no

reasonable expectation that the BLM will re-issue the

1999 and 2000 Box Elder Orders because they have

been superceded by the 2003 Box Elder Order. See Am.

Rivers v. Nat'l Marine Fisheries Serv., 126 F.3d 1118,

1124 (9th Cir. 1997) (superceding agency opinion moots

original opinion). Moreover, the 1999 and 2000 Box

Elder Orders will not evade review because USA-ALL

makes the same arguments with respect to those orders

as it does with respect to the 2003 Box Elder Order,

which this Court reviews in Part ITI.C-E. See id. (when

superceding agency opinion is capable of review,

exception to the mootness doctrine does not apply).

18a

Accordingly, the portion of this appeal relating to the

1999 and 2000 Box Elder Orders is dismissed as moot.

C. The BLM Complied with Procedures Mandated by

FLPMA and its Action is Supported by Substantial

Evidence.

1. The Restrictions Are Not "De Facto Amendments."

USA-ALL contends that the 2003 Box Elder Order and

the two Grand County restrictions must be nullified

because they are "de facto amendments" to the Box

Elder and Grand County RMPs that were issued

without public notice and participation and without the

BLM having first conducted an EA as required by

FLPMA. We disagree.

Although there is some support outside this jurisdiction

for an argument relating to "de facto amendments," the

cases of which this Court is aware have little--if any--

bearing on the facts presented by this appeal. See, e.g.,

House v. U.S. Forest Serv., 974 F. Supp. 1022 (E.D. Ky.

1997) (proposed timber sale approved on the basis of

three policies that constituted "significant" changes to

land use plan requires same public comment as land use

plan itself); Or. Natural Res. Council Fund v.

Forsgren, 252 F. Supp. 2d 1088 (D. Ore. 2003) (narrower

definition of lynx habitat which led to reduction in such

habitat is "significant" change to land use plan and

requires public comment and preparation of EIS). This

Court is not aware of any authority indicating that a

closure order promulgated pursuant to 43 C.F.R. §§

8341.2 and 8364.1 constitutes a "de facto" amendment to

an RMP, thus triggering compliance with FLPMA's

public participation and EA requirements. To the

19a

contrary, the Ninth Circuit has specifically held that

"[njothing in [§ 8364.1] or the authorizing statutory

sections requires public hearings for temporary

closures" to vehicular use--thereby foreclosing any

argument that temporary ORV closures are essentially

RMP amendments. Humboldt County v. United States,

684 F.2d 1276, 1283 (9th Cir. 1982).

Indeed, courts have consistently emphasized the

distinction between the initial ORV-route-designation

process reflected in an RMP--which is subject to public

comment and requires the promulgation of an EA--and

closures of those designated routes authorized under

regulations promulgated pursuant to FLPMA, NEPA,

and other statutes. For example, the Central District of

California noted that:

The regulations took into account the

amendments to E.O. 11,684 effected E.O. 11,9839,

3 C.F.R. 120 (1978). See 43 C.F.R. s 8341.2. E.0.

11,989, among other things, amended E.O. 11,644

so as to require closure of ORV areas and trails

whenever an agency finds that ORV use will

cause or is causing "considerable adverse

effects." This closure standard is to be

distinguished from the initial designation

criteria set forth in E.O. 11,644 and mirrored in

43 C.F.R. § 8342.1.

Am. Motorcyclist Ass'n v. Watt, 543 F. Supp. 789, 796

n.14 (C.D. Cal. 1982) (emphasis added); see also Sierra

Club, 756 F.2d at 690 (stating that 43 C.F.R. § 8341.2

"creates a separate duty to close without regard to the

designation process; it does not automatically become

inoperative once the Secretary exercises his discretion

20a

to designate the land."); Am. Sand Ass'n v. U.S. Dept.

of Interior, 268 F. Supp. 2d 1250, 1255 (S.D. Cal. 2003)

(closure order under 43 C.F.R. §§ 8341.2 and 8364.1

done in accordance with FLPMA).

Moreover, this exemption of OHV travel restrictions

from the resource management planning process

reflects the realities of public land management and

allows the BLM to timely comply with its statutory

mandate to "take any action necessary to prevent

unnecessary or undue degradation of the lands." 43

U.S.C. § 1782(b). Because the RMP revision process is

much more time-consuming than enacting a temporary

closure order, the BLM could not effectively respond to

resource degradation only through the formal planning

process. In this way, the BLM's exercise of its

authority to address resource degradation--whether

done pursuant to 43 C.F.R. § 8342.1(a) or 43 C.F.R. §

8364.1--is not "de facto" planning. Rather, it is a lawful

discharge of the BLM's duty, independent of the

planning process, to prevent undue degradation of

resources.

2. An Emergency Is Not Required Before the BLM May

Close Lands to ORV Use, and Its Decision is Supported

by Substantial Evidence.

USA-ALL also argues that there was no substantial

evidence supporting a finding of an emergency, which it

contends is necessary before the BLM may place ORV

restrictions on the public lands. This contention is

completely without merit. The regulation authorizing

the challenged orders does not use the word

“emergency, nor does it contain any language from

which a requirement of an emergency could be inferred.

2la

See 43 C.F.R. § 8341.2; see also Am. Sand Dune Ass'n,

268 F'. Supp. 2d at 1254 (holding that no emergency is

necessary under FLPMA for the BLM to issue ORV

closure orders). Rather, the BLM's authority under 43

C.F.R. § 8341.2 is tied to the existence of considerable

adverse effects that are being caused by or will be

caused by ORV use, and our review of the record

convinces us that substantial evidence supports such a

finding in this case. For this reason, we also disagree

with USA-ALL's contention that the BLM's

explanation as to why it issued the closure orders is

implausible.

D. NEPA

Next, USA-ALL appears to argue that because NEPA

requires preparation of an EA prior to the

promulgation of an RMP, see State of Utah v. Babbitt,

137 F.3d 1193, 1214 (10th Cir. 1998), NEPA similarly

requires preparation of an EA prior to the amendment

of an RMP. We have just held, however, that the

closure orders at issue are not amendments.

Accordingly, we reject this argument.*

In addition, for the first time before this Court, USA-

ALL maintains that NEPA compliance is necessary for

the closure of public transportation routes, which it

apparently understands Utah's wilderness areas to be.

This issue, however, was not presented to the District

Court; therefore, we do not consider it further. See

Cummings, 393 F.3d at 1190.

E. NDAA

The District Court properly dismissed USA-ALL's

22a

claims under the NDAA for lack of standing. A party

must first have standing before its claim may be

adjudicated on the merits. "The standing inquiry

requires us to consider both constitutional limits on

federal court jurisdiction and prudential limitations on

its exercise." Bd. of County Comm'rs of Sweetwater

County v. Geringer, 297 F.3d 1108, 1111 (10th Cir.

2002). There is no dispute that USA-ALL meets the

requirements of constitutional standing.

With respect to prudential standing, federal courts

have long recognized that a plaintiff must satisfy the

following prudential principles: "(1) the plaintiff

generally must assert his or her own legal rights; (2)

the court must refrain from adjudicating generalized

grievances most appropriately addressed by one of the

other branches of government; and (3) the plaintiff's

complaint must fall within the zone of interests to be

protected or regulated by the statute . . . in question."

Mount Evans Co. v. Madigan, 14 F.3d 1444, 1450-51

(10th Cir. 1994) (internal quotation omitted). "The zone

of interests test is a guide for deciding whether, in view

of Congress' evident intent to make agency action

presumptively reviewable, a particular plaintiff should

be heard to complain of a particular agency decision."

Id. at 1452. The burden to establish prudential standing

is on the plaintiff bringing the action. See id. at 1450.

In our view, USA-ALL has not demonstrated that its

interest in using the public lands for ORV and other

recreational activities fall within the zone of interests

protected by the NDAA. Therefore, USA-ALL may

not challenge the BLM's action as violating the NDAA.

F. Factory Butte

23a

Finally, we conclude that the District Court properly

concluded that USA-ALL lacked standing to challenge

BLM-issued signs encouraging, but not requiring, ORV

users to stay on particular routes on land designated as

"open." According to USA-ALL, its members have

refrained from traveling away from those particular

routes because they fear that the BLM will retaliate by

closing those areas if those members fail to comply with

the BLM's request. The possibility of a mandatory

closure, however, is far from imminent, and therefore

USA-ALL has failed to allege an "injury in fact" for

purposes of standing. See Bear Lodge Multiple Use

Ass'n v. Babbitt, 175 F.3d 814, 821-22 (10th Cir. 1999).

IV. CONCLUSION

The BLM complied with required procedures under

FLPMA and NEPA when it enacted the 2003 Box

Elder Order and the Grand County ORV and Camping

Restrictions, the BLM's decision close various public

lands to ORV use was supported by substantial

evidence, and the BLM's reasoning in doing so was not

implausible. Further, USA-ALL does not have

standing to challenge the Orders and Restrictions

under the NDAA, and it also lacks standing to

challenge the posting of signs encouraging ORV use

only on particular trails. We therefore AFFIRM.

nl The Moab Field Office oversees the management of

public lands in Grand County.

n2 5 US.C. App. 2 § 1 et seg. USA-ALL later

voluntarily dismissed its FACA claim.

2Aa

n3 USA-ALL does ask this Court to "overturn" E.O.

11989, 48 C.F.R. § 8841.2, and 43 C.F.R. § 8364.1

because they are inconsistent with FLPMA and NEPA;

if we were to do so, USA-ALL argues, the BLM would

have had no authority for its actions. Because, however,

this argument was raised for the first time on appeal,

we do not entertain it. See Cummings v. Norton, 393

F.3d 1186, 1190 (10th Cir. 2005). Accordingly, our

review is limited to whether the BLM acted in

accordance with required procedures and whether its

actions were arbitrary or capricious.

n4 USA-ALL's argument on this point is not entirely

clear. Referencing 42 U.S.C. § 4332(2)(E), which states

that "all agencies of the Federal Government shall. . .

study, develop, and describe appropriate alternatives to

recommended courses of action in any proposal which

involves unresolved conflicts concerning alternative

uses of available resources," USA-ALL contends that

the BLM was required to prepare an EA. Although an

agency must comply with § 4332(2)(E) in preparing an

EA, see 40 C.F.R. § 1508.9(b), this subsection is not

what triggers the need to prepare an EA. Rather, an

agency may choose to prepare an EA "[wlhen it is

unclear whether a proposed action requires an EIS."

Greater Yellowstone Coalition v. Flowers, 359 F.3d

1257, 1274 (10th Cir. 2004). An agency is required to

prepare an EJS only for "major Federal actions

significantly affecting the quality of the human

environment.” 42 U.S.C. § 4332(2)(C). Further

muddying the water, USA-ALL makes no attempt to

argue how an ORV closure order or camping restriction

constitutes either a "proposal" within the meaning of

subsection (E) or a "major federal action" under

subsection (C). Finally, we note that some courts have

25a

concluded that actions taken to protect the

environment need not be predicated by an EA or an

EIS. See Am. Sand Ass'n, 268 F. Supp. 2d at 1253 ("An

environmental assessment or an environmental impact

statement is not necessary for federal actions that

conserve the environment.") (citing Douglas County v.

Babbitt, 48 F.3d 1495, 1505 (9th Cir. 1995)); Nat'l Assoc.

of Property Owners v. United States, 499 F. Supp. 1223,

1265 (D. Minn. 1980) ("In essence, plaintiffs' claim is

that the Department of Agriculture must prepare an

EIS in order to leave nature alone. The Court is not

moved by this argument."). Therefore, to the extent

USA-ALL contends that the issuance of a closure order

pursuant to 43 C.F.R. § 8341.2(a) constitutes either a

"proposal" or a "major Federal action," we decline to

address the issue. See Craven v. Univ. of Colo. Hosp.

Auth., 260 F.3d 1218, 1226 (10th Cir. 2001) ("We will not

manufacture arguments for an appellant, and a bare

assertion does not preserve a claim, particularly when,

as here, a host of other issues are presented for

review.’).

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Civil No. 2:01-C V-00804J

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF UTAH, CENTRAL DIVISION

UTAH SHARED ACCESS ALLIANCE,

Plaintiff

V.

GLENN CARPENTER, in his capacity as manager of

the Salt Lake Field Office of the Bureau of Land

Management, MAGGIE WYATT, in her capacity as

manager of the Moab Field office of the Bureau of Land

Management, SHERWIN SANDBERG, in his capacity

as manager of the Monticello Field Office of the Bureau

of Land Management; JERRY MEREDITH, in his

capacity manager of the Richfield Field Office; SALLY

WISELY, in her capacity a Utah State Director of the

Bureau of Land Management, GALE A. NORTON, in

her capacity as Secretary of the Department of Interior,

KATHLEEN CLARKE, in her capacity as director of

the Bureau of Land Management, and BUREAU OF

LAND MANAGEMENT,

Defendants;

SOUTHERN UTAH WILDERNESS ALIJANCE,

THE WILDERNESS SOCIETY, GREAT OLD

BROADS FOR WILDERNESS, AND WILDLANDS

CPR.,

Defendants- Intervenors

December 8, 2004, Decided

December 9, 2004, Filed

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COUNSEL: For UTAH SHARED ACCESS

ALLIANCE, a Utah non-profit corporation, plaintiff:

Paul W. Mortensen, EMAIL, HANKS ROOKER &

DENNING, SALT LAKE CITY, UT

For GLENN CARPENTER, in his capacity as

manager of the Salt Lake Field Office of the Bureau of

Land Management, MAGGIE WYATT, in her capacity

as manager of the Moab Field Office of the Bureau of

Land Management, SHERWIN SANDBERG, in his

capacity as manager of the Monticello Field Office of

the Bureau of Land Management, JERRY

MEREDITH, in his capacity as manager of the

Richfield Field Office of the Bureau of Land

Management, SALLY WISELY, in her capacity as

Utah State Director of the Bureau of Land

Management, GALE A. NORTON, in her capacity as

Secretary of the Department of Interior, NINA ROSE

HATFIELD, in her capacity as acting director of the

Bureau of Land Management, BUREAU OF LAND

MANAGEMENT, KATHLEEN CLARKE, In her,

capacity as director of the Bureau of Land

Management, defendant: Carlie Christensen, Ms.,

EMALL, Jeffrey E Nelson, Mr., EMALL, US

ATTORNEY'S OFFICE

For SOUTHERN UTAH WILDERNESS

ALLIANCE, A Utah non-profit corporation, THE

WILDERNESS SOCIETY, WILDLANDS CPR, A

non-profit corporation, GREAT OLD BROADS FOR

WILDERNESS, A non-profit corporation, REDROCK

FORESTS, A Utah non ~- profit corporation,

intervenor-defendant: James S. Angell, EMALL, Keith

G. Bauerle, EMALL, Eric Biber, EARTHJUSTICE,

DENVER, CO; Heidi J. McIntosh, EMALL, Stephen

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H. Bloch, EMALL, SOUTHERN UTAH

WILDERNESS, ALLINANCE, SALT LAKE CITY,

UT

JUDGES: BRUCE 8S. JENKINS, United States Senior

District Judge

OPINION BY: BRUCE 8S. JENKINS

OPINION:

MEMORANDUM OPINION & ORDER RE:

SUPPLEMENTAL COMPLAINT

CHALLENGING THE APRIL 24, 2003 BOX

ELDER COUNTY ORDER

In a Memorandum Opinion and Order ("Order")

dated August 28, 2003, the Court dismissed all of the

causes of action of Plaintiff. Utah Shared Access

Alliance ("USA-AlIl")'s First Amended Complaint

against defendants Glenn Carpenter, et al. (collectively

"Defendants"). (See Order, dated August-28, 2003 (dkt.

no. 118).) The case remained open pending the Court's

ruling on the claims set forth in USA-All's

Supplemental Complaint Regarding New Box Elder

County Restrictions, for which USA-All seeks

declaratory and injunctive relief requiring Defendants

to acknowledge and to adhere to controlling law and

BLM's governing land management plan_ while

managing motorized access to public lands in Box Elder

County, Utah. Specifically, USA-All challenges

Defendants’ April 24, 2003 action restricting land in

Box Elder County: USA-AIl alleges that Defendants

have arbitrarily and capriciously abused their

emergency authority; violated the directions of their

governing land management plan; unlawfully amended

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its land use plan to close access roads without utilizing

legally - required procedures, public participation and

environmental analysis; and _ violated specific

congressional restrictions in the Nationa: Defense

Authorization Act for fiscal year 2000.

This action arises under the Federal Land Policy

and Management Act, 43. U.S.C. § 1701, et. seq. (2000)

("FLPMA"); the National Environmental Policy Act, 42

U.S.C. § 4331, et. seq. (2000) ("NEPA"); the National

Defense Authorization Act for Fiscal Year 2000, Pub.

L. No. 106-65 [*1268] ("NDAA"); and, where

applicable, implementing regulations, all made

reviewable through the Administrative Procedure Act,

5 U.S.C. § 701 et. seq. (2000) (the "APA"). 5 U.S.C. § §

702, 704, 706(2).

Having fully considered the arguments of counsel,

the submissions of counsel, and the applicable legal

authority, the court now enters the following

memorandum opinion and order.

FACTUAL HISTORY

The Box Elder Resource Management Plan ("RMP")

was completed in 1986. Under the RMP, 999,634 acres

were designated as open to off-highway vehicle

("OHV") travel; 11,180 acres were limited to existing

routes; and 980 acres were limited to designated routes.

On January 14, 1998, BLM completed a plan

amendment that addressed the management of certain

lands that BLM acquired after the RMP was

completed. On April 27, 1999, BLM published a "Notice

of Closure of Public Lands" closing selected public lands

in Box Elder County to OHV travel from January 1 to

April 30 of each year. On March 28, 2000, BLM

published a "Notice of Closure of Public Lands" closing

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certain lands in western Box Elder County to address

concerns related to unrestricted cross - country OHV

travel in places where resource damage had occurred.

On April 24, 2003, BLM issued a "Notice of Limitations

of Off Road Vehicles (ORV) Use on Public Lands" with

respect to certain defined lands in Box Elder County.

68 Fed. Reg. 20,167 (2003) ("New Order"). The New

Order which revoked the two prior notices described

above restricted OHV use to designated routes in five

described areas in Box Elder County.

USA-All claims that by the New Order, Defendants

have restricted use of over 180,000 acres of BLM land

in the Pilot Mountains, Grouse Creek Mountains, Devils

Playground, Hogup Mountains and Wildcat Hills; that

Defendants’ restrictions have eliminated open travel in

these areas. BLM has closed more than half of the

existing roads in these areas. USA-AIl asserts that

their members have in the past traveled in or on areas

and roads now so restricted; that USA-All members are

restricted in pulling off the road to establish camping

sites; and that USA-All members have immediate

intentions to travel on existing roads and trails, as well

as off-road in restricted areas, but they are afraid of

incurring criminal sanctions, being stigmatized, and/or

suffering additional access restrictions if they violate

the restrictions. USA-All and its members assert that

they have been denied the opportunity to participate in

motorized access management planning.

Defendants argue that the BLM properly exercised

its authority in issuing the New Order; that the New

Order is supported by. ample evidence in the

administrative record; and that the BLM's issuance of

the New Order does not create a "de facto amendment"

of the RMP. Specifically, the BLM's Salt Lake Field

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Office documented evidence of proliferation of new

OHV routes, damage and destruction of vegetation,

increased soil erosion, and a likelihood of damage to

cultural resources; for these reasons, BLM was

required by applicable regulations to close the affected

areas until the adverse affects of OHV travel are

eliminated. They also contend that USA - All lacks

standing to complain of alleged violations of the NDAA,

but in any event the BLM's issuance of the New Order

did not violate the NDAA.

ISSUES ON APPEAL

1. Does USA-All have standing to challenge any alleged

violations by the BLM of the National Defense

Authorization Act of 2000? If so, does the New Order

violate the National Defense Authorization Act of 2000?

2. Is the New Order unsupported by substantial

evidence or otherwise arbitrary and capricious?

3. Does the New Order violate the planning

requirements of the Federal Land Policy and

Management Act?

4. Does the New Order violate the National

Environmental Policy Act.

STANDARD OF REVIEW

USA-All alleges that the New Order violates

FLPMA's land use planning requirements, the

environmental analysis requirements of the NEPA and

the NDAA. Because none of these statutes includes a

citizen's suit provision, judicial review is governed by

the APA, 5 U.S.C. § § 701 et seq. Judicial review under

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the APA is limited to the administrative record and is

narrow in scope. The APA provides that, "the

reviewing court shall ... hold unlawful and set aside

agency action, findings, and conclusions found to be ...

arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law." 5 U.S.C. §

706(2)(A); see also Olenhouse v. Commodity Credit

Corp., 42 F.3d 1560, 1574 (10th Cir. 1994), that is,

"whether [BLM] examined the relevant data and

articulated a rational connection between the facts

found and the decision made." Jd. Agency action is

arbitrary and capricious if the decision runs counter to

the evidence before the agency or if it is not supported

by substantial evidence in the record. See Motor

Vehicle Mfrs. Ass'n v. State Farm Mut. Ins. Co., 463

U.S. 29, 48, 77 L. Ed. 2d 443, 103 S. Ct. 2856 (1983).

DISCUSSION

I. USA-All Lacks Standing to Challenge the New

Order Under the National Defense Authorization

Act of 2000.

Defendants and defendant-intervenors dispute that

USA - Ali has standing to challenge the New Order

under NDAA. USA-AIl claims that there has been a

violation of Section 2815 of the NDAA, which prevents

BLM from amending its RMPs for some of the areas

covered by the New Order until the Secretary of

Defense studies the impacts that those amendments

would have on military readiness. NDAA § 2815,

Specifically, USA-All argues that the New Order

stripped out interior roads in at least 2 or 3 areas

resulting in immense areas that now qualify as 5,000-

acre de facto wilderness areas condemned by the

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NDAA. (See Transcript of Hearing, dated July 16, 2004

("Tr."), at.16.)

For an APA claim such as this, standing includes

the "prudential" requirement that "the plaintiff's

complaint must fall within the zone of interest to be

protected or regulated by the statute or constitutional

guarantee in question." Mount Evans Co. v Madigan,

14 F.3d 1444, 1451 (10th Cir. 1994). A plaintiff must

establish that its injury "falls within the ‘zone of

interests' sought to be protected by the statutory

provision whose violation forms the legal basis of the

complaint." Id. at 1452 (citations omitted); see also

Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 883, 111 L.

Ed. 2d 695, 110 S. Ct. 3177 (1990). As to § 2815, the

NDAA's purpose is to ensure that BLM land-use

planning does not vitiate military readiness. NDAA §

2815(a). USA-AIl's purported injury - the imposition of

limits on the ability of its members to ride their

machines across the public lands - hardly falls into this

zone of interest. USA-AlIl lacks prudential standing to

pursue a NDAA claim. Accordingly USA-All's ADA

claim based on the NDAA claim must be dismissed.

II. The New Order does not violate either the

Federal Land Policy and Management Act or the

National Environmental Policy Act.

BLM regulations provide that if the BLM

determines that ORVs “are causing or will cause

considerable adverse effects" to natural resources,

other authorized uses, or other resources, the BLM

"shall close the area affected to the type(s) of vehicle

causing the adverse effect." 43 C.F.R. § 8341.2(a)

(2003) (emphasis added). Thus, the regulations do not

require evidence of existing adverse effects before use

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restrictions can be imposed. Under § 8341.2(a), the

BLM's role in minimizing user conflicts and damage to

natural resources is not strictly reactive. Northwest

Motorcycle Ass'n v. United States Dep't of Agric., 18

F.3d 1468, 1476-77 (9th Cir. 1994).

In addition, NEPA sets forth a set of action - forcing

procedures that require that agencies take a "hard look"

at environmental consequences. See Friends of the Bow

v. Thompson, 124 F.8d 1210,1213 (10th Cir. 1997).

Under NEPA, a federal court must determine whether

the agency took the required “hard look" at potential

environmental consequences of its decision.

USA - All argues that the New Order is inconsistent

with the RMP and that it violates NEPA and the

FLPMA requirements. for public participation and

environmental analysis, as well as the FLPMA

standards for consistency. USA - All argues that the

court must either reject BLM's interpretation or strike

the federal regulations down.' (See Tr.17.)

USA - All is mistaken in asserting that the OHV

regulation violates the NEPA and FLPMA public

participation, environmental analysis and consistency

requirements. As this Court stated in its previous

Order, the amendment of an RMP is a different process

from the issue of a closure order under the OHV

regulations. The amendment or revision of an RMP is a

lengthy process that requires a number of steps,

including scoping, publication of an environmental

impact statement, and public comment. See generally

43 C.F.R. Part 1600. BLM's authority to close areas to

OHV use, is separate from the plan amendment process

and does not require compliance with the amendment

procedures. (Order, at 19.)

3dDa

The plain meaning of the, provision supports this

distinction:

Notwithstanding the consultation

provisions of §$ 8342.2(a), where the

authorized officer determines that off-road

vehicles are causing or will cause

considerable adverse effects... the

authorized officer shall immediately close

the areas or trails affected... Such closures

will not prevent designation. . ., but these

shall not be opened to the type(s) of off-road

vehicle to which it was closed unless the

authorized officer determines that the

adverse effects have been eliminated and

measures implemented to prevent

recurrence.

43 CFR. § 8341.2(a) (emphasis added). The BLM's

authority to restrict land uses under these regulations

is independent of its authority to amend or revise

RMPs under FLPMA and 43 C.F.R. Part 1600. These

regulations simply enforce FLPMA's mandate. that the

BLM "shall by regulation or otherwise, take any action

necessary to prevent unnecessary or undue

degradation of the lands." 4.3 U.S.C. § 1732(b).

Furthermore, the Administrative Record ("AR") is

replete with evidence of various real and potential

adverse effects supporting the BLM's issuance of the

New Order: ORV use has already caused or will cause

(1) harm to livestock grazing through the cutting of

fences, the opening of gates, and the harassment of

livestock; * (2) increased risk to soils susceptible to

erosion if exposed by ORV use and trail creation;* (3)

destroyed vegetation in western Box Elder County,

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increased bare areas that are vulnerable to colonization

by, noxious and invasive weeds, as well as trail

proliferation that removes vegetation and increasing

soil erosion;' (4) considerable adverse effects on

wildlife;> and (5) diminished visual appeal of the desert

landscape.°

The court is satisfied that the defendants took the

required “hard look" at potential environmental

consequences of its decision under NEPA and that the

New Order was not arbitrary or capricious under the

regulations.

For the reasons discussed above,

IT IS ORDERED that all of the causes of action of

USA-All's Supplemental Amended Complaint are

DISMISSED with prejudice.

Let judgment be entered accordingly.

DATED this 8th December, 2004.

BY THE COURT

BRUCE 8. JENKINS

United States Senior District Judge

JUDGMENT IN A CIVIL CASE

The action came to trial or hearing before the Court.

The issues have been tried or heard and a decision has

been rendered.

IT ISORDERED AND ADJUDGED

that judgment be entered in favor of the defendants

and plaintiffs cause of action is dismissed with

prejudice.

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December 13, 2004

Footnotes

nl USA-All states that although it is reluctant to

challenge a regulation that on its face if used properly

by the agency can help everyone, there is conflict

within the governing statutes and the court may be

compelled to strike the regulation. Tr.12, In 3-10.

n2 AR 00839-00859.

n3 3AR 00840-00885.

n4 AR 00830-00860, 00918-22.

n5 AR 00841-00861.

n6 AR 00840-00845.

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8/28/03

Civil No. 2:01-CV-00804J

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF UTAH, CENTRAL DIVISION

UTAH SHARED ACCESS ALLIANCE,

Plaintiff

V.

GLENN CARPENTER, in his capacity as manager of

the Salt Lake Field Office of the Bureau of Land

Management, MAGGIE WYATT, in her capacity as

manager of the Moab Field office of the Bureau of Land

Management, SHERWIN SANDBERG, in his capacity

as manager of the Monticello Field Office of the Bureau

of Land Management; JERRY MEREDITH, in his

capacity manager of the Richfield Field Office; SALLY

WISELY, in her capacity a Utah State Director of the

Bureau of Land Management, GALE A. NORTON, in

her capacity as Secretary of the Department of Interior,

KATHLEEN CLARKE, in her capacity as director of

the Bureau of Land Management, and BUREAU OF

LAND MANAGEMENT,

Defendants;

SOUTHERN UTAH WILDERNESS ALIANCE,

THE WILDERNESS SOCIETY, GREAT OLD

BROADS FOR WILDERNESS, AND WILDLANDS

CPR.,

Defendants- Intervenors

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I.

INTRODUCTION

Plaintiff Utah Shared Access Alliance ("USA-AII")

challenges a number of actions and alleged failures to

act on the part of defendants Glenn Carpenter, et al.

(collectively "BLM"). Specifically, USA-All's First

Amended Complaint alleges that BLM failed to follow

applicable law when BLM issued orders restricting the

operation of off-highway vehicles ("OHVS"), mountain

bikes, camping, and woodcutting on various tracts of

BLM-managed land in Box Elder County, Grand

County, San Juan County, and Wayne County, Utah. In

addition, USA-All alleges that BLM violated applicable

law by posting signs inconsistent with land-use plan

designations and by publishing incorrect information

with respect to the use of OHVS and mountain bikes on

BLM-managed land. USA-All claims that the

challenged actions violate provisions of the Federal

Land Policy and Management Act ("FLPMA"), 43

U.S.C. §§ 1701, et_seg.; the National Environmental

Policy Act ("NEPA"), 43 U.S.C. §$§ 4321, et seq; certain

regulations of the Department of the Interior; and land-

use plans adopted by BLM.

USA-AII also alleges that BLM violated the Federal

Advisory Committee Act ("FACA"), 5 U.S.C. App. 2 §§

1, et seq., by participating in meetings of groups formed

for the purpose of discussing land-use issues in Box

Elder and Grand Counties.

USA-AIl's First Amended Complaint requests the

following relief: (1) a declaration that BLM's alleged

actions and inactions violate applicable law, (2) an order

setting aside BLM's orders and actions that allegedly

violate applicable law, and (3) an oréer compelling BLM

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to engage in land-use planning with respect to the lands

affected by BLM'’s orders and actions described above.

For the reasons discussed below, the Court dismisses

each of USA-All's causes of action with prejudice.

Il. LEGAL FRAMEWORK

A. Federal Land Policy and Management Act

Under FLPMA, the BLM is directed to manage the

public lands “under principles of multiple use and

sustained yield" and "in a manner that will protect the

quality of scientific, scenic, historical, ecological,

environmental, air and atmospheric, water resource,

and archeological values." 43 U.S.C. §§ 1701(a)(8),

1732(a). "Multiple use" requires management of the

public lands and their numerous natural resources so

that they can be used for economic, recreational, and

scientific purposes, and so as to prevent unnecessary

and undue degradation. Id. at § 1702(c); Public Lands

Council v. Babbitt,167 F.3d 1287,1290-91(10" Cir.1999),

aff'd, 529 U.S. 728 (2000). "Sustained yield" is defined

as "the achievement and maintenance in perpetuity of a

high-level annual or regular periodic output of the

various renewable resources of the public lands

consistent with multiple use. "43 U.S.C. § 1702(h).

B. Land-Use Plans

To assist in the management of public lands, FLPMA

requires that the BLM “develop, maintain, and, when

appropriate, revise land use plans ... which provide .. .

for the use of the public lands." 43 U.S.C. § 1712(a). In

the development and revision of land use plans, the

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BLM is required to “use and observe the principles of

multiple use and sustained yield." Id. at § 1712(¢)(1).

The land-use plans developed by the BLM are

generally known as resource management plans

("RMPs"). 43 C.F.R. § 1601.0-5k. Once an RMP is

adopted, the BLM is required to "manage the public

lands. . . in accordance with the land use plans" 43

U.S.C. § 1732(a); Southern Utah wilderness Alliance v.

Norton, 301 F.3d 1217,1233-34 (10° Cir. 2002). RMPs

must "establish intervals and standards, as appropriate,

for monitoring and evaluation of the plan." 43 C.F.R. §§

1610.4-9, 1601.0-5(k) (emphasis added). In addition,

RMPs shall be revised "as necessary, based on

monitoring and evaluation findings Sec. 1610.4-9), new

data, new or revised policy and changes in

circumstances affecting the entire plan or major

portions of the plan." Id. at § 1610.5-6.

C. ORV Executive Orders and Regulations.

Off-road vehicle ("ORV") or off-highway vehicle

("OHV") use represents one of many land uses that the

BLM provides for in the management of public lands.

In 1972, President Nixon issued an executive order for

the purpose of "establish{ing] policies and provid[ing]

procedures that will ensure that the use of ORVs on

public lands will be controlled and directed so as to

protect the resources of those lands, promote the safety

of all users of those lands, and minimize conflicts among

the various users of those lands." Executive Order No.

11644, 37 Fed. Reg. 2877 (Feb. 8, 1972). This executive

order established criteria by which federal agencies

were to develop regulations and administrative

instructions for the designation of specific areas and

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trails in which ORVs may and may not be permitted,

E.0.11644, § 3. The order also required that agencies

"monitor the effects" of ORV use on their public lands

and, "[o|n the basis of the information gathered, they

shall from time to time amend or rescind designations

of areas for ORV use as necessary to further its policy."

E.0. 11644, § 8.

In 1977, President Carter amended Executive Order

No.11644 "to clarify agency authority" to define zones of

use by ORVs on public lands. The order provides that

notwithstanding the administrative designation of

public lands, federal land management agencies have

the authority to close areas and trails to ORVs

whenever the agency determines that ORV use "will

cause or is causing considerable adverse effects "to

particular resources. The order also authorizes agencies

to adopt policies that particular lands can be considered

closed to ORVs except for areas or trails that are

specifically designated as open to such use. Executive

Order No. 11989, 42 Fed. Reg. 26959 (May 25, 1977)

(both executive orders are referred to as the "ORV

Executive Orders").

The Department of the Interior has promulgated

regulations implementing the OR Executive Orders

and establishing criteria for designating lands as open,

limited, or closed to the use of ORVs. 43 C.F.R. Part

8340 (the "ORV Regulations"). The regulations require

BLM officials to locate ORV trails and areas so as to

minimize user conflicts and damage to natural

resources, including wildlife and wildlife habitat, and to

prevent impairment of wilderness suitability. Id. at §

8342.1 (a)-(c), Designation of ORV = areas is

accomplished through the resource management

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planning process, and must involve the public and

consider the views of interested parties. Id. at §

8342.2(a). After designation is completed, the field

manager must take measures to identify designated

areas and trails so the public will be aware of the

locations and limitations applicable to ORV use. Id. at §

8342.2(b). The field manager shall notify the public by

marking areas and trails and by providing informational

material such as maps to the public. Id. at § 8342.2(c).

In accordance with the ORV Executive Orders,

however, the BLM regulations also provide that if the

BLM determines that ORVs “are causing or will cause

considerable adverse effects" to natural resources,

other authorized uses, or other resources, the BLM

"shall close the area affected to the type(s) of vehicle

causing the adverse effect." Id. at § 8341.2(a). The BLM

is authorized to impose closures under these

circumstances without engaging in the public

participation requirements of the RMP planning

process. Id. (BLM _ shall close such _ areas

[Njotwithstanding the consultation provisions in §

8342.2(a).") Such closure may remain in effect "until the

adverse effects are eliminated and measures

implemented to prevent recurrence," Id.

Under the ORV Executive Orders and _ their

implementing regulations, discretion rests with the

agencies to determine whether and to what extent

specific areas should be closed to ORV use. Sierra Club

v. Clark, 756 F.2d 686, 690 (9th Cir. 1984); see also Ohio

Valley Trail Riders v. Worthington, 111 F. Supp. 2d

878, 885 (E.D. Ky. 2000) (holding that the Forest

Service has broad discretion to prohibit or restrict

OHV use where necessary to protect forest resources).

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The Council on Environmental Quality, the agency

charged with a continuing review of the implementation

of the ORV Executive Orders (E.0.11644, § 8(b)), has

interpreted the ORV Executive Orders as conferring

the responsibility for closing particular areas on

"responsible federal officials in the field" "[b}liased on

their practical experience in the management of the

public lands, and their first-hand knowledge of

conditions ‘on the ground." Sierra Club, 756 F.2d at

690.

The BLM's role in minimizing user conflicts and

damage to natural resources is not strictly reactive.

Northwest Motorcycle Ass'n. v. United States Dep't. of

Agric., 18 F.3d 1468, 1476-77 (9th Cir. 1994). Under 43

C.F.R. § 8341.2 when the authorized officer determines

that ORVs “are causing or will cause considerable

adverse effects," the authorized officer "shall

immediately close the areas affected to the types) of

vehicle causing the adverse effects" (Emphasis added).

Thus, the regulations do not require evidence of

existing adverse effects before use restrictions can be

imposed. See Northwest Motorcycle Ass'n, 18 F. 3d at

1476-77 (holding that the Forest Service's charge to

minimize “user conflict" when developing ORV use

plans does not require that actual conflicts exist before

restrictions on ORV use can be imposed).

D. Closure and Restriction Orders

The BLM also has the authority, independent of its

regulation of ORV use, to close or restrict the use of

public lands under its management and supervision.

O'Neal v. United States, 814 F.2d 1285, 1287 (9th Cir.

1987). Under the governing regulation, the BLM may

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close or restrict the use of designated public lands "to

protect persons, property, and public lands and

resources.” 43 C.F.R. § 8364.1(a).

An order that closes or restricts the use of public lands

must identify the public lands that are closed to entry

or restricted as to use; specify the uses that are

restricted; specify the period of time during which the

closure or restriction applies; identify those persons

exempt from the closure or restriction; and include a

statement of the reasons for the closure. Id. at §

8364.1(b). The order must be posted in designated

locations and must be published in the Federal

Register. Id. at § 8364.1(c).

III. BLM MANAGEMENT ACTIONS

A. Box Elder County

On April 27, 1999, BLM published a "Notice of Closure

of Public Lands" closing selected public lands in Box

Elder County to OHV travel from January 1 to April 30

of each year. (ARSLFO 00768-9.) On March 28, 2000,

BLM published a "Notice of Closure of Public Lands"

under which certain lands in western Box Elder County

were closed in order to address concern related to

unrestricted cross-county OHV travel in places where

resource damage had occurred. (AR SLF000792.) USA-

All has challenged these orders on the grounds that

they violate FLPMA, NEPA, and _= applicable

regulations.

BLM moved to stay the briefing of these issues on the

ground that it intended to revoke the above-described

closure orders in Box Elder County and issue a new

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closure order affecting a smaller geographic area. On

April 24, 2003, BLM issued a "Notice of Limitations of

Off Road Vehicles (ORV) Use on Public Lands" with

respect to certain defined lands in Box Elder County.

68 Fed. Reg. 20,167 (2003). This order revokes the prior

closure orders described above and restricts OHV use

to designated routes in five described areas in Box

Elder County.

On May 8, 2008, the Court issued an order granting

BLM's motion to stay the briefing with respect to the

revoked Box Elder County closure orders. The Court

also granted USA-All 30 days from the date of the

order to file any claims USA-AIl might choose to file

with respect to the new closure order in Box Elder

County. On June 6, 2003, USA-All filed a Supplemental

Complaint addressing issues relating to the new closure

order in Box Elder County. For these reasons, USA-

All's challenge to BLM's 1999 and 2000 closure orders is

moot, and the Court will not address the merits of those

claims in this Memorandum Opinion and Order. See

Citizens for Responsible Gov't State Political Action

Comm. v. Davidson, 236 F.3d 1174, 1182 (10th Cir. 2000)

("A case is moot when the issues are no longer "“live’ or

the parties lack a legally cognizable interest its the

outcome.")

B. Grand County

BLM's Moab Field Office manages over 1.8 million

acres of public land in Grand County and part of San

Juan County. In 1985, BLM completed a resource

management plan (the Grand RMP") governing the

management and use of those lands. (AR MOAB00001.)

Under the Grand RMP, 1,183,660 acres were designated

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as "open" to OHV use; 596,234 acres were designated as

limited to existing roads and trails; 15,206 acres were

limited to designated roads and trails; and 24,454 acres

were closed to OHV use. (AR MOABO00115.)

Since the adoption of the Grand RMP in 1985,

recreation and tourism in the Moab area have increased

substantially, resulting in a parallel increase in the use

of BLM-managed lands. (AR MOAB00002.) By 2000,

the Moab Field Office had begun to document various

types of adverse effects resulting from increased OHV

and mountain bike use on the lands managed by the

Moab Field Office. The documented adverse effects

included OHV and mountain bike tracks off of main

routes and past barriers, tracks through cryptobiotic

soils, extensive denuded areas, trail proliferation, user

conflicts, soil erosion, and trampling of plants. (AR

MOAB00011-12, 00048-64, 00150-154, 00779, 00878.)

In an effort to eliminate these adverse effects, BLM

imposed restrictions on OHV travel and other uses of

BLM lands managed by the Moab Field Office. On

January 22, 2001, BLM published a "Notice of Travel

Restrictions" (the "Moab Travel Notice") under which

OHV and mountain bike travel in five areas designated

as "Moab Travel Management Areas" was limited to

existing roads and trails. 66 Fed. Reg. 6659 (2001). (AR

MOAB000011-15.) This order affected a total of 245,046

acres, representing 13% of the land managed by the

Moab Field Office and 256 of the land that had

previously been designated as "open" to OHV travel.

(ARMOABO00012.)

Also on January 22, 2001, BLM published a "Notice of

Camping and Wood Cutting and Gathering

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Restrictions" (the "Moab Camping Notice"). 66 Fed.

Reg. 6658 (2001). (AR MOAB00007-10.) Under the

Moab Camping Notice, camping with vehicles is limited

to developed campgrounds and designated sites in

certain described areas and within one-half mile of

several designated highways and roads. (AR

MOAB00008.) The notice also includes requirements for

disposal of solid human waste, restrictions on

woodcutting and gathering, and certain restrictions on

backpack-type camping in the designated areas. (AR

MOAB00008-9.) The Moab Travel and Camping Notices

were implemented "on an interim basis . . . pending

revision of the Resource Management Plan (RMP)...."

(AR MOAB00007, 00011.) BLM has begun the revision

of the Grand RMP and expects to complete the process

in March 2006. The revised Grand RMP will include

specific travel-related planning, including identification

of areas where OHV travel is open, limited, or closed;

designation of routes where appropriate; and camping

and wood-cutting restrictions to the extent they may be

deemed necessary. (Declaration of Katherine P.

Mitchell., Par 3.)

The Moab Field Office's monitoring of the areas

affected by the Moab Travel and Camping Notices has

produced evidence of continuing adverse effects in

these areas. This monitoring has revealed evidence of

OHV and mountain bike use, off-road tracking, and off-

road damage in these areas (AR MOABO1846, 01847,

01848, 01850, 01852, and 01855.)

C. San Juan County

The resource management plan for the San Juan

Resource Area (the "San Juan RMP"), which includes

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land currently managed by the Monticello Field Office,

was adopted on March 18, 1991 (AR MONT90OO0001.)

Under the San Juan RMP, lands in the Indian Creek

Canyon Corridor ("ICCC") were generally designated

as "open" to OHV travel.

After the adoption of the San Juan RMP, use of OHVs

in the ICCC increased. (AR MONT 00181.) This

resulted in a proliferation of trails in the ICCC, along

with damage to riparian areas, vegetation, soil, and

visual and cultural resources. (AR MONT00132.)

Because of these adverse effects on resources, the

Monticello Field Office published a "Notice of

Recreation Use Restrictions for Indian Creek Canyon

Corridor" (the "Monticello Recreation Notice") on

January 2, 1998. (AR MONT00132.) The Monticello

Recreation Notice restricted the use of OHVs and

mountain bikes to existing roads and trails; restricted

camping to improved recreation sites with facilities for

overnight use or designated undeveloped campsites;

prohibited woodgathering within one-half mile of

motorized routes; and required that campfires within

onehalf mile of motorized routes be built only in BLM-

constructed fire rings, designated fire rings, or fire

pans. (AR MONT900132.)

The Monticello Recreation Notice states that it "shall

remain in effect pending the completion of the Indian

Creek Canyon Corridor Recreation Plan" or until

updated by the authorized office," (AR MONT00132.)

BLM has begun the revision of the San Juan RMP and

expects to complete that process by March 2006,

(Mitchell Deel., 4 13.)

The administrative record includes evidence that

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adverse effects continue to exist in the ICCC area.

Monitoring reports have revealed instances of hill-

climbing activity, travel off of existing routes, off-trail

damage, and undeveloped campsites in the ICCC. (AR

MONT001 81, 00328, 00333, 00335, 00337, 00338, 00339,

00340, 00799, 00850, 00851, 00997.)

USA-AIl contends that BLM has placed signs in the

ICCC area and prepared maps and visitor information

that are inconsistent with the San Juan RMP and the

Monticello Recreation Notice. (First Amended

Complaint, 44 130-132.) Katherine P. Mitchell, BLM's

Deputy State Director, represented that she met with

USA-AIl's representative, Brian Hawthorns, to discuss

these issues, and that BLM has taken steps to remedy

any inconsistencies between the Monticello Recreation

Notice and the signs and other visitor information in

the ICCC area. (Kitchell Decl. Par. 11). Mr. Hawthorne

responded that BLM had corrected at least some of the

allegedly incorrect signs and information. (Second

Declaration of Brian Hawthorne, Par. 2.) Counsel for

the BLM represented that BLM intends to remedy any

remaining inconsistencies between the Monticello

Recreation Notice and the signs and other visitor

information in the ICCC area.

D. Factory Butte Area

The land-use plan for the Henry Mountain Field Station

was adopted in 1982, and a_ specific OHV

implementation plan, which includes the Factory Butte

area, was adapted in 1988. Under the 1988 OHV plan,

the majority of the lands near Factory Butte were

designated as "open" to OHV travel. In addition, the

plan identified a 640-acre “play area" where OHV use

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was encouraged. (AR RICH00003.)

USA-AIl contends that BLM's signs and media violate

FLPMA's consistency mandate, 43 U.S.C. § 1732(a) and

43 C.F.R. § 1610.5-3(a), because they are inconsistent

with requirements set forth in BLM's governing land-

use plan. (Plaintiff's First Amended Complaint 4 148-

153; Plaintiff's Opening Brief at 87-90; Plaintiff's Reply

Brief at 16-19.) USA-All also alleges that BLM has

violated FLPMA and NEPA by requesting, through

signs, handouts, and personal contacts, that OHV users

- voluntarily use the "OHV play area" while staying on

existing roads and trails elsewhere in the - Factory

Butte area. (First Amended Complaint, Ninth and

Tenth Causes of Action; USA-All's Opening Brief at 81-

95.) USA-All alleges that some of its members have

refrained from traveling in open areas in the Factory

Butte area because they fear that BLM will _ retaliate

by closing these areas if USA-All's members fail to

voluntarily comply with BLM’'s requests. (First

Hawthorne Decl., ¥ 15.)

BLM's Deputy State Director represented that she met

with USA-All's representative, Brian Hawthorne, to

discuss this issue, and that BLM has modified language

on signs and other information provided to the public in

the Factory Butte area. (Kitchen Decl., 4 11.) Mr.

Hawthorne does not dispute that BLM has addressed

USA-AIll's concerns. (Second Hawthorne Decl., 413.)

IV. DISCUSSION

A. Standard of Review

JSA-All challenges BLM's actions and _ alleged

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inactions under the Administrative Procedure Act

("APA"), 5 U.S.C. §§ 701-706. USA-All challenges

BLM's actions under U.S.C. § 706(2) on the ground that

USA-All's actions are arbitrary, capricious, in excess of

statutory authority, without observance of procedure

required by law, or otherwise not in accordance with

law. "The duty of a reviewing court under the ‘arbitrary

and capricious’ standard is to ascertain whether the

agency examined the relevant data and articulated a

rationale connection between the facts found and

decision made." Olenhouse v. Commodity Credit ., 42

F.3d 1560, 1574 (10th Cir. 1994) (citing Motor Vehicle

Mfrs. Ass'n v. State Farm Mut. Ins. Co., 463 U.S. 29, 4

(1983)).

USA-All also challenges BLM"'s alleged failure to

undertake FLPMA planning and NEPA analysis under

5 U.S.C. § 706(1), which authorizes courts to "compel

agency action unlawfully withheld or unreasonably

delayed." Courts may grant relief under Section 706(1)

only in the case of mandatory, nondiscretionary duties.

"{I}f a duty is not mandated, or if an agency possesses

discretion over whether to act in the first instance, a

court may not grant relief under § 706(1)" Southern

Utah Wilderness Alliance v. Norton, 301 F.3d 1217,

1226 (10th Cir. 2002).

B. BLM's Issuance of Closure Orders

i. Moab Travel and Camping Notices

USA-AIl contends that BLM's orders restricting OHV

travel, camping, and woodcutting in Grand County are

not supported by substantial evidence in the record.

The Court disagrees.

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When reviewing agency action under Section 706(2) of

the APA, the Court's role is limited to determining

whether the agency relied on appropriate factors in

making its decision and whether there is substantial

evidence in the record that supports the decision,

Olenhouse, 42 F.3d at 1574. The Court may not

substitute its judgment far that of the agency, even if

the Court might have made a different choice. Custer

County Action Ass'n v. Garvey, 256 F.3d 1024, 1030

(10th Cir. 2001), cert. denied, 534 U.S. 1127 (2002). In

reviewing agency action, the Tenth Circuit has held

that "if Congress has not directly addressed the issue,

the agency possesses broad discretion in administering

the law so long as its actions are based on a permissible

construction of its enabling statute ..., This discretion

is even greater where, as here, the agency's actions are

based on the interpretation of its own regulations."

Valley Camp of Utah v. Babbitt, 24 F.3d 1263, 1267 (10h

Cir.1994) (citations omitted). "|T|he scope of review of

an agency's factual findings is very narrow where the

[agency] has been vested with substantial discretion, as

in the administration of public land." Sierra Club v.

Clark, 756 F.2d at 691 (citation omitted).

The regulations relevant to this case that authorize

BLM to restrict permissible uses of public land are 43

C.F.R. §§ 8341.2 and 8364.1. Under Section 8341.2(a),

BLM is required to immediately close any area to OHV

travel where “off-road vehicles are causing or will cause

considerable adverse effects ... ." (Emphasis added.)

Under this regulation, it is not necessary that BLM

demonstrate that adverse effects have already occurred

in each area where OHV use will be limited. Instead,

BLM may restrict OHV use in areas where it has

documented the existence of adverse effects or where it

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has determined in the exercise of its judgment that

adverse effects are likely to occur. See Northwest

Motorcycle Ass'n v. U.S. Dep't of Agriculture, 18 F.3d

at 1466-67 (holding that the Forest Service need not

prove existing considerable adverse effects in order to

justify restriction of OHV use under a Forest Service

regulation, 36 C.F.R. § 295.5, mandating restriction

where OHV use "will" cause or is "likely" to cause

considerable adverse effects).

In addition, under 43 C.F.R. § 8864.1(a), BLM is

authorized to restrict uses of federal land in order "to

protect persons, property, and public lands and

resources.)" This regulation authorizes BLM to restrict

uses other than OHV travel, including mountain biking,

camping, and woodcutting.

As set forth above, the administrative record contains

substantial evidence of various adverse effects

supporting BLM's issuance of the Moab Travel and

Camping Notices, including evidence of tracks off of

main routes and beyond barriers, tracks through

cryptobiotic soils, litter and other waste products on

trails, trail proliferation, and damage to soil and

vegetation. Moreover, the camping and woodcutting

restrictions are adequately supported by substantial

evidence in the record that BLM' action was required in

order “to protect persons, property, and public lands

and resources" under 43 C.F.R. § 8364.1(a).

The administrative record also contains substantial

evidence supporting BLM's determination to maintain

the Moab Travel and Camping Notices in effect. Under

43 C.F.R. § 8341.2(a), areas where OHV travel is

restricted due to the actual or potential presence of

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considerable adverse effects "shall not be opened to the

type(s) of off-road vehicle to which it was closed unless

the authorized officer determines that the adverse

effects have been eliminated and measures

implemented to prevent recurrence." Id. at § 8341.2(a)

(emphasis added). The administrative record contains

substantial evidence that the adverse effects in the

areas covered by the Moab Travel and Camping

Notices have not been eliminated. BLM monitoring

reports contain evidence of continuing instances of

damage and adverse effects resulting from OHV travel

in the areas covered by these notices. Since the adverse

effects that gave rise to the notices have not been

eliminated, BLM is justified in maintaining these

restrictions in effect.

2. Monticello Recreation Notice

USA-AIl does not allege that the Monticello Recreation

Notice was unjustified or unsupported by substantial

evidence. (USA-AII's Opening Brief at 70 n.126.) USA-

All alleges, however, that BLM is not justified in

maintaining the Monticello Recreation Notice in effect.

(First Amended Complaint, Seventh and Eighth

Causes of Action.)

As set forth above, the administrative record contains

substantial evidence that resource damage and adverse

effects continue to exist in the ICCC since the

Monticello Recreation Notice was issued in 1998. The

record contains evidence of hill-climbing activity, travel

off existing roads, numerous off-road tracks, and other

instances of resource damage in the ICCC area. Since

the adverse effects that gave rise to the Monticello

Recreation Notice have not been eliminated, BLM has

56a

lawfully maintained those restrictions in place. 43

C.F.R. § 8341.2(a).

C. Time Limit of Closure Orders

USA-AIl contends that orders restricting the use of

federal lands under 43 C.F.R. § 8341.2 and 8364.1 must

either contain specific expiration dates or be deemed to

have expired after a period of no more than three years.

(First Amended Complaint, 480, 89, 128; USA-All's

Opening Brief at 60-61, 75-76.) Under 43 C.F.R. §

8341.2, areas that are closed to OHV travel due to the

existence of considerable adverse effects "shall not be

opened" until the adverse effects are eliminated. The

regulation contains no provision for expiration within a

particular period of time. To the contrary, the

expiration of closure orders issued under 43 C.F.R. §

8341.2 is governed by the existence or elimination of

the adverse effects that gave rise to the closure orders.

Until those adverse effects have been eliminated, BLM

is required to maintain the closure orders in effect.

BLM must, on an ongoing periodic basis, review

conditions relied upon to issue the closure orders

challenged herein. 43 C.F.R. § 8341.2(a).

Under 438 C.F.R. § 8364.1, BLM is required to "specify

the period of time during which the closure or

restriction shall apply." 43 C. F. R, § 8364.1 (b)(3). This

language, however, does not require that BLM specify

an expiration date.

The Moab Travel and Camping Notices state that they

"shall remain in effect until modified or the RMP is

amended." (AR MOAB0007, -11.) Similarly, the

Monticello Recreation Notice states that it "shall

7a

remain in effect pending the completion of the Indian

Creek Canyon Corridor Recreation Plan or until

updated by the authorized officer." (AR MONT000132.)

BLM has begun the revision of the Grand and San Juan

RMPs and intends to complete those projects by March

2006. Therefore, BLM has complied with the

requirement of 43 C.F.R. § 8364.1 that it "specify the

period of time during which the closure order

restriction shall apply" by linking the expiration of

those closure orders to the completion of the revisions

of the Grand and San Juan RMPs.

D. Land-Use Planning

1. "De Facto Amendment" Claim

USA-AlIl contends that BLM's issuance of closure

orders and other use restrictions has created "de facto"

amendments of the applicable resource management

plans. (First Amended Complaint, ¥4 81, 86, 91, 107,

129, 156.) The amendment and revision of land-use

plans is accomplished as part of the planning process

set forth in 4 C.F.R. Part 1600. The amendment or

revision of a land use plan is a lengthy process that

requires that 1.M engage in a scoping process to

identify relewant issues; evaluate the effects of

alternative eourses of action; prepare a_ draft

environmental impact statement; analyze public

comments; publish a final environmental impact

statement with a proposed revised RMP; and resolve

any protests to the proposed RMP. (Kitchell Decl., Par.

3.)

BLM is also authorized, independent of the formal

planning process, to take action in response to resource

58a

damage by closing areas and otherwise restricting uses

of federal lands pursuant to 43 C.F.R. §§ 8341.2 and

8364.1. These regulations implement FLPMA's

mandate that BLM "shall, by regulation or otherwise,

take any action necessary to prevent unnecessary or

undue degradation of the lands." 43 U.S.C; § 1732(b).

BLM's authority to restrict land uses under these

regulations is independent of its authority to amend or

revise RMPs under FLPMA and 48 C.F.R. Subpart

1600. See 48 C.F.R., § 8341.2(a) (BLM is required to

close areas that are suffering or will suffer considerable

adverse effects “[njotwithstanding the consultation

provisions in § 8342.2(a)"); see also Sierra Club v. Clark,

756 F.2d at 690 ("[T}his provision [43 C.F.R. § 8341.2(a)]

creates a separate duty to close without regard to the

designation process; it does not automatically become

inoperative once the Secretary exercises its discretion

to designate land"); American Motorcyclist Ass'n v.

Watt, 543 F. Supp. 789, 796 n.14 (C.D. Cal. 1982) ("This

closure standard [under 43 C.F. R. § 8341.2] is to be

distinguished from the initial designation criteria set

forth in E.O. 11, 644 and mirrored in 48 C.F.R. §

8342.1.").

Although BLM's issuance of the challenged orders

modifies the permissible uses of BLM-managed land

outside the framework of the land-use planning process,

the orders are consistent with BLM's authority under

43 C.F.R. §§ 8341.2 and 8364.1. BLM's issuance of these

orders and closures does not constitute "de facto" plan

amendments.

2. Section 706(1) claims

59a

USA-AII alleges that BLM has unlawfully withheld or

unreasonably delayed the amendment of the Grand and

San Juan RMPs and the Henry Mountains Management

Framework Plan, and that BLM should be compelled to

engage in the plan amendment process. (First

Amended Complaint, Fourth, Sixth, Seventh, and

Kighth Causes of Action.) Under FLPMA, the

Secretary of the Interior "shall ... develop, maintain,

and, when appropriate, revise land-use plans... ." 43 U.

S.C. § 1712(a). BLM is required by regulation to

monitor and evaluate landuse plans and "as appropriate

to determine whether there is sufficient cause to

warrant amendment or revision of the plan." 43 C.F.R.

§ 1610.4-9. These provisions leave the determination of

the timing of land-use plan amendment and revision

largely to the discretion of the BLM. Since there is no

specified interval or date-certain deadline for the

initiation and completion of land-use plan amendments

and revisions, there is no basis for a claim that BLM has

"unlawfully withheld" that action. Forest Guardians v.

Babbitt,174 F.3d 1178, 1190-91 (10th Cir. 1999).

The facts before the Court also fail to support a claim

that BLM has "unreasonably delayed" land-use

planning in these areas. BLM has initiated revisions of

the R MPs governing the areas managed by the Moab,

Monticello, and Richfield Field Offices BLM _ shall,

pursuant to 43 C.F.R. Part 1600, provide USA-All and

its members full opportunity to participate in the

planning process. BLM estimates that the plan

revisions will be completed by March 2006. Therefore,

BLM has not “unreasonably delayed" the process of

revising these land-use plans.

EB. Management Actions in the ICCC and Factory

Butte Areas

USA-All alleges that BLM has placed inaccurate

informational signs and disseminated misleading

information to public land users in the ICCC area in

San Juan County. USA-All also alleges that BLM has

improperly requested public land users in the Factory

Butte area to voluntarily restrict their OHV use to an

"OHV play area" and otherwise to remain on existing

trails in the Factory Butte area. (First Amended

Complaint, Seventh, Eighth, and Ninth Causes of

Action.)

BLM's efforts to manage the use of public lands and the

effects of OHV use are not at odds with BLM's

obligation to engage in land-use planning as

appropriate. FLPMA requires BLM to "take any action

necessary to prevent unnecessary or undue

degradation of the [public] lands." 43 U.S.C. § 1732(b).

In addition, Congress directed BLM to manage the

public lands “for outdoor recreation" as well as "to

preserve and protect certain public lands in their

natural condition." Id. at § 1701(a)(8). BLM is therefore

authorized to take steps short of formal planning - -

such as placing signs on the ground and disseminating

information to the public - - in an effort to prevent

unnecessary and undue degradation of the lands under

BLM's control. Even if such efforts in the Factory

Butte and ICCC areas may have been in error, the

record demonstrates that BLM has taken steps to

correct such errors.

Furthermore, USA-All lacks standing to object to

BLM's request that OHV users in the Factory Butte

area remain on existing trails outside the designated

6la

"OHV play area." BLM has requested that OHV users

in the Factory Butte area voluntarily restrict their

activities. BLM has not imposed a mandatory closure or

restriction. In fact, the language in the current sign and

hand-out in use at the OHV play area states in bold

print that the "Factory Butte area outside the

designated Play Area is also open to off-road use and

such use is permissible." (AR RICH00408, 00414)

BLM's request for voluntary compliance does not

constitute an “injury in fact" sufficient to confer

standing on USA-All and its members. Bear Lodge

Multiple Use Ass'n v. Babbitt, 175 F. 3d 814, 821 (10°

Cir. 1999, cert denied, 629 U.S. 1037(2000).

Finally, the declarations submitted by both USA-AIl

and BLM indicate that the parties have discussed these

issues and have agreed on the steps needed to resolve

them. (Kitchell Decl., { 11; Second Hawthorne Decl., 4

2-3) Thus, these issues are moot, and the Court need

not address them further. See Southern Utah

wilderness Alliance v. Smith, 110 F.3d 724, 727 (10th

Cir. 2000) (issues are moct where’ changed

circumstances since the beginning of litigation "forestall

any occasion for meaningful relief’).

Federal Advisory Committee Act

USA-All alleged that BLM violated FACA by

participating with local groups that were formed to

address OHV issues in Box Elder and Grand Counties.

In Box Elder County, BLM participated with the west

Box Elder Access Management Team ("Box Elder

Team"), USA-All requested, among other things,

judgment voiding the closure orders issued with

respect to BLM lands in Box Elder County. (USA-AII's

62a

Opening Brief at 104-5.) This issue is moot, however,

because BLM has revoked those closure orders and

issued a new closure order. USA-All has filed a

Supplemental Complaint with respect to the new

closure order in Box Elder County, and USA-AIll's

claims with respect to BLM's actions in Box Elder

County will be addressed in connection with the

Supplemental Complaint.

In Grand County, BLM participated with the Grand

County Access Committee ("GCAC"). USA-AIl

requested injunctive relief with respect to BLM's

participation with the GCAC. (USA-AIl's Opening Brief

at 104.) However, USA-AIl lacks standing to sue for

any alleged violation of FACA in connection with the

GCAC. The GCAC was organized on March 29, 2001,

over two months after BLM issued the Moab Travel

and Camping Notices that USAAII challenges in the

present case. (AR MOABO00942.) The Grand County

Council terminated the GCAC effective August 8, 2002,

and the GCAC produced no recommendations or other

completed work product. (von Koch Decl. Par. 8.) Thus,

USA-All cannot show the "injury in fact" required to

establish standing to seek relief under FACA.

Fertilizer Institute v. U.S. Envtl. Protection Agency.,

938 F. Supp 52, 55 (D. D. C.1996).

V. CONCLUSION

lor the reasons discussed above,

IT IS ORDERED that all of the causes of action of

USA-All's First Amended Complaint are dismissed

with prejudice.

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IT I FURTHER ORDERED that this case shall

remain open pending the Court's ruling on the claims

set forth in USA-AIll's Supplemental Complaint

Regarding New Box Elder County Restrictions.

Dated this 28 day of May, 2003.

64a

Civil No. 2:01 CV 804J

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, CENTRAL DIVISION

UTAH SHARED ACCESS ALLIANCE Utah non-

profit corporation,

Plaintiffs,

VS.

GLENN CARPENTER, et al., Defendants,

SOUTHERN UTAH WILDERNESS ALLIANCE, et

al.

Defendants -Intervenors.

ORDER

The Federal Defendants’ Motion to Stay was heard by

the Court on April 23, 2003. Jeffrey E. Nelson

represented the Federal Defendants; Paul W.

Mortensen represented the Plaintiffs; and Stephen

H.M. Bloch represented the Defendants-Intervenors.

Based on the memoranda submitted by the parties and

the arguments of counsel,

IT 1S HEREBY ORDERED as follows:

The oral argument will proceed as scheduled at 9:30

a.m. on Wednesday, May 21, 2003, on the issues briefed

by Plaintiff that are not resolved by BLM's revocation

of the two closure orders affecting certain BLM-

managed lands in Box Elder County.

2. If Plaintiff decides to assert any claim with

respect to the new order published by BLM with

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respect to certain BLM-managed lands in Box Elder

County, Plaintiff shall allege any such claim by filing an

appropriate amended pleading within 30 days from the

date of this Order. In the event Plaintiff files such a

claim with respect to the new order in Box Elder

County, the issues arising from Plaintiff's new claim or

claims shall be briefed and argued separately from the

argument to be held on May 21, 2003.

Dated this 8th day of May, 2003.

66a

No. 05-4009

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

UTAH SHARED ACCESS ALLIANCE, a Utah non-

profit corporation,

Plaintiff-Appellant,

V.

GLENN CARPENTER, in his capacity as manager of

the Salt Lake Field Office of the Bureau of Land

Management; MAGGIE WYATT, in her capacity as

manager of the Moab Field Office of the Bureau of Land

Management; SHERWIN SANDBERG, in his capacity

as manager of the Monticello Field Office of the Bureau

of Land Management; JERRY MEREDITH, in his

capacity as manager of the Richfield Field Office of the

Bureau of Land Management; SALLY WISELY, in her

capacity as Utah State Director of the Bureau of Land

Management; GALE A. NORTON, in her capacity as

Secretary of the Department of Interior; BUREAU OF

LAND MANAGEMENT; KATHLEEN CLARKE, in

her capacity as director of the Bureau of Land

Management, Defendants-Appellees,

SOUTHERN UTAH WILDERNESS ALLIANCE, a

Utah non-profit corporation; THE WILDERNESS

SOCIETY; WILDLANDS CPR, a non-profit

corporation; GREAT OLD BROADS FOR

WILDERNESS, a non-profit corporation; REDROCK

FORESTS, a Utah non-profit corporation,

Defendants-Intervenors-Appellees.

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ORDER

Filed November 21, 2006

JUDGES: Before TACHA, Chief Circuit Judge,

McWILLIAMS, Senior Circuit Judge, and O'BRIEN,

Circuit Judge.

Appellant's petition for rehearing is denied.

The petition for rehearing en banc was transmitted to

all of the judges of the court who are in regular active

service. As no member of the panel and no judge in

regular active service on the court requested that the

court be polled, that petition is also denied. Entered for

the Court

68a

FLPMA Sec. 103(d) 43 U.S.C. § 1702(d)

(d) The term “public involvement” means_ the

opportunity for participation by affected citizens in

rulemaking, decisionmaking, and planning with respect

to the public lands, including public meetings or

hearings held at locations near the affected lands, or

advisory mechanisms, or such other procedures as may

be necessary to provide public comment in a particular

instance.

FLPMA Sec. 202 43 U.S.C. § 1712. Land use plans

(a) Development, maintenance, and revision by

Secretary

The Secretary shall, with public involvement and

consistent with the terms and conditions of this Act,

develop, maintain, and, when appropriate, revise land

use plans which provide by tracts or areas for the use of

the public lands. Land use plans shall be deveioped for

the public lands regardless of whether such lands

previously have been classified, withdrawn, set aside,

or otherwise designated for one or more uses.

(b) Coordination of plans for National Forest System

lands with Indian land use planning and management

programs for purposes of development and revision

In the development and revision of land use plans, the

Secretary of Agriculture shall coordinate land use plans

for lands in the National Forest System with the land

use planning and management programs of and for

Indian tribes by, among other things, considering the

policies of approved tribal land resource management

programs.

(ce) Criteria for development and revision

In the development and revision of land use plans, the

69a

Secretary shall—

(1) use and observe the principles of multiple use and

sustained yield set forth in this and other applicable

law;

(2) use a systematic interdisciplinary approach to

achieve integrated consideration of physical, biological,

economic, and other sciences;

(3) give priority to the designation and protection of

areas of critical environmental concern;

(4) rely, to the extent it is available, on the inventory of

the public lands, their resources, and other values;

(5) consider present and potential uses of the public

lands;

(6) consider the relative scarcity of the values involved

and the availability of alternative means (including

recycling) and sites for realization of those values;

(7) weigh long-term benefits to the public against short-

term benefits;

(8) provide for compliance with applicable pollution

control laws, including State and Federal air, water,

noise, or other pollution standards or implementation

plans; and

(9) to the extent consistent with the laws governing the

administration of the public lands, coordinate the land

use inventory, planning, and management activities of

or for such lands with the land use planning and

management programs of other Federal departments

and agencies and of the States and local governments

within which the lands are located, including, but not

limited to, the statewide outdoor recreation plans

developed under the Act of September 3, 1964 (78 Stat.

897), as amended [16 U.S.C. 4601-4 et seq.], and of or for

Indian tribes by, among other things, considering the

policies of approved State and tribal land resource

management programs. In implementing this directive,

70a

the Secretary shall, to the extent he finds practical,

keep apprised of State, local, and tribal land use plans;

assure that consideration is given to those State, local,

and tribal plans that are germane in the development of

land use plans for public lands; assist in resolving, to

the extent practical, inconsistencies between Federal

and non-Federal Government plans, and shall provide

for meaningful public involvement of State and local

government officials, both elected and appointed, in the

development of land use programs, land use

regulations, and land use decisions for public lands,

including early public notice of proposed decisions

which may have a significant impact on non-Federal

lands. Such officials in each State are authorized to

furnish advice to the Secretary with respect to the

development and revision of land use plans, land use

guidelines, land use rules, and land use regulations for

the public lands within such State and with respect to

such other land use matters as may be referred to them

by him. Land use plans of the Secretary under this

section shall be consistent with State and local plans to

the maximum extent he finds consistent with Federal

law and the purposes of this Act.

(d) Review and inclusion of classified public lands;

review of existing land use plans; modification and

termination of classifications

Any classification of public lands or any land use plan in

effect on October 21, 1976, is subject to review in the

land use planning process conducted under this section,

and all public lands, regardless of classification, are

subject to inclusion in any land use plan developed

pursuant to this section. The Secretary may modify or

terminate any such classification consistent with such

land use plans.

(e) Management decisions for implementation of

Tila

developed or revised plans

The Secretary may issue management decisions to

implement land use plans developed or revised under

this section in accordance with the following:

(1) Such decisions, including but not limited to

exclusions (that is, total elimination) of one or more of

the principal or major uses made by a management

decision shall remain subject to reconsideration,

modification, and termination through revision by the

Secretary or his delegate, under the provisions of this

section, of the land use plan involved.

(2) Any management decision or action pursuant to a

management decision that excludes (that is, totally

eliminates) one or more of the principal or major uses

for two or more years with respect to a tract of land of

one hundred thousand acres or more shall be reported

by the Secretary to the House of Representatives and

the Senate. If within ninety days from the giving of

such notice (exclusive of days on which either House

has adjourned for more than three consecutive days),

the Congress adopts a concurrent resolution of

nonapproval of the management decision or action, then

the management decision or action shall be promptly

terminated by the Secretary. If the committee to which

a resolution has been referred during the said ninety

day period, has not reported it at the end of thirty

calendar days after its referral, it shall be in order to

either discharge the committee from further

consideration of such resolution or to discharge the

committee from consideration of any other resolution

with respect to the management decision or action. A

motion to discharge may be made only by an individual

favoring the resolution, shall be highly privileged

(except that it may not be made after the committee

has reported such a resolution), and debate thereon

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shall be limited to not more than one hour, to be divided

equally between those favoring and those opposing the

resolution. An amendment to the motion shall not be in

order, and it shall not be in order to move to reconsider

the vote by which the motion was agreed to or

disagreed to. If the motion to discharge is agreed to or

disagreed to, the motion may not be made with respect

to any other resolution with respect to the same

management decision or action. When the committee

has reprinted, or has been discharged from further

consideration of a resolution, it shall at any time

thereafter be in order (even though a previous motion

to the same effect has been disagreed to) to move to

proceed to the consideration of the resolution. The

motion shall be highly privileged and shall not be

debatable. An amendment to the motion shall not be in

order, and it shall not be in order to move to reconsider

the vote by which the motion was agreed to or

disagreed to.

(3) Withdrawals made pursuant to section 1714 of this

title may be used in carrying out management

decisions, but public lands shall be removed from or

restored to the operation of the Mining Law of 1872, as

amended (R.S. 2318-2352; 30 U.S.C. 21 et seq.) or

transferred to another department, bureau, or agency

only by withdrawal! action pursuant to section 1714 of

this title or other action pursuant to applicable law:

Provided, That nothing in this section shall prevent a

wholly owned Government corporation from acquiring

and hoiding rights as a citizen under the Mining Law of

1872.

(f) Procedures applicable to formulation of plans and

programs for public land management

The Secretary shall allow an opportunity for public

involvement and by regulation shall _ establish

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procedures, including public hearings where

appropriate, to give Federal, State, and _ local

governments and the public, adequate notice and

opportunity to comment upon and participate in the

formulation of plans and programs relating to the

management of the public lands.

FLPMA See. 302(a) 43 U.S.C. § 1732(a).

The Secretary shall manage the public lands under

principles of multiple use and sustained yield, in

accordance with the land use plans developed by him

under section 1712 of this title when they are available,

except that where a tract of such public land has been

dedicated to specific uses according to any other

provisions of law it shall be managed in accordance with

such law.

FLPMA Sec. 302(b) 43 U.S.C. § 1732(b).

(b)In managing the public lands, the Secretary shall,

subject to this Act and other applicable law and under

such terms and conditions as are consistent with such

law, regulate, through easements, permits, leases,

licenses, published rules, or other instruments as the

Secretary deems appropriate, the use, occupancy, and

development of the public lands, including, but not

limited to, long-term leases to permit individuals to

utilize public lands for habitation, cultivation, and the

development of small trade or manufacturing concerns:

Provided, That uniess otherwise provided for by law,

the Secretary may permit Federal departments and

agencies to use, occupy, and develop public lands only

through rights-of-way under section 1767 of this title,

withdrawals under section 1714 of this title, and, where

74a

the proposed use and development are similar or

closely related to the programs of the Secretary for the

public lands involved, cooperative agreements under

section 1737 (b) of this title: Provided further, That

nothing in this Act shall be construed as authorizing the

Secretary concerned to require Federal permits to hunt

and fish on public lands or on lands in the National

Forest System and adjacent waters or as enlarging or

diminishing the responsibility and authority of the

States for management of fish and resident wildlife.

However, the Secretary concerned may designate areas

of public land and of lands in the National Forest

System where, and establish periods when, no hunting

or fishing will be permitted for reasons of public safety,

administration, or compliance with provisions of

applicable law. Except in emergencies, any regulations

of the Secretary concerned relating to hunting and

fishing pursuant to this section shall be put into effect

only after consultation with the appropriate State fish

and game department. Nothing in this Act shall modify

or change any provision of Federal law relating to

migratory birds or to endangered or threatened

species. Except as provided in section 1744, section

1782, and subsection (f) of section 1781 of this title and

in the last sentence of this paragraph, no provision of

this section or any other section of this Act shall in any

way amend the Mining Law of 1872 or impair the rights

of any locators or claims under that Act, including, but

not limited to, rights of ingress and egress. In managing

the public lands the Secretary shall, by regulation or

otherwise, take any action necessary to prevent

unnecessary or undue degradation of the lands.

75a

FLPMA Sec. 309(e) 43 U.S.C. § 1739(e).

In exercising his authorities under this Act, the

Secretary, by regulation, shall establish procedures,

including public hearings where appropriate, to give

the Federal, State, and local governments and the

public adequate notice and an opportunity to comment

upon the formulation of standards and criteria for, and

to participate in, the preparation and execution of plans

and programs for, and the management of, the public

lands.

76a

2005 CFR 43 § 1601.0-2

The objective of resource management planning by the

Bureau of Land Management is to maximize resource

values for the public through a rational, consistently

applied set of regulations and procedures which

promote the concept of multiple use management and

ensure participation by the public, state and local

governments, Indian tribes and appropriate Federal

agencies. Resource management plans are designed to

guide and control future management actions and the

development of subsequent, more detailed and limited

scope plans for resources and uses.

2005 CFR 43 § 1601.0-5(k).

(k) Public means affected or interested individuals,

including consumer organizations. public land resource

users, corporations and other business entities,

environmental organizations and other special interest

groups and officials of State, local, and Indian tribal

governments.

2005 CFR 43 §1610.1

(c) An interdisciplinary approach shall be used in the

preparation, amendment and revision of resource

management plans as provided in 40 CFR 1502.6. The

disciplines of the preparers shall be appropriate to the

values involved and the issues identified during the

issue identification and environmental impact

statement scoping stage of the planning process. The

Field Manager may use any necessary combination of

Bureau of Land Management staff, consultants,

contractors, other governmental personnel, and

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advisors to achieve an interdisciplinary approach.

2005 CFR 43 § 1610.2 Public participation.

(a) The public shall be provided opportunities to

meaningfully participate in and comment on the

preparation of plans, amendments and related guidance

and be given early notice of planning activities. Public

involvement in the resource management planning

process shall conform to the requirements of the

National Environmental Policy Act and associated

implementing regulations.

(b) The Director shall, early in each fiscal year, publish

a planning schedule advising the public of the status of

each plan in process of preparation or to be started

during that fiscal year, the major action on each plan

during that fiscal year and projected new planning

starts for the 3 succeeding fiscal years. The notice shall

call for public comments on projected new planning

starts so that such comments can be considered in

refining priorities for those years.

(c) When BLM starts to prepare, amend, or revise

resource management plans we will begin the process

by publishing a notice in the Federal Register and

appropriate local media, including newspapers of

general circulation in the state and field office area. The

Field Manager may also decide if it is appropriate to

publish a notice in media in adjoining States. This

notice may also constitute the scoping notice required

by regulation for the National Environmental Policy

Act (40 CFR 1501.7). This notice shall include the

following:

(1) Description of the proposed planning action;

(2) Identification of the geographic area for which the

plan is to be prepared;

78a

(3) The general types of issues anticipated;

(4) The disciplines to be represented and used to

prepare the plan;

(5) The kind and extent of public participation

opportunities to be provided;

(6) The times, dates and locations scheduled or

anticipated for any public meetings, hearings,

conferences or other gatherings, as known at the time;

(7) The name, title, address and telephone number of

the Bureau of Land Management official who may be

contacted for further information; and

(8) The location and availability of documents relevant

to the planning process.

(d) A list of individuals and groups known to be

interested in or affected by a resource management

plan shall be maintained by the Field Manager and

those on the list shall be notified of public participation

activities. Individuals or groups may ask to be placed

on this list. Public participation activities conducted by

the Bureau of Land Management shall be documented

by a record or summary of the principal issues

discussed and comments made.

The documentation together with a list of attendees

shall be available to the public and open for 30 days to

any participant who wishes to clarify the views he/she

expressed.

(e) At least 15 days’ public notice shall be given for

public participation activities where the public is

invited to attend. Any notice requesting written

comments shall provide for at least 30 calendar days for

response. Ninety days shall be provided for review of

the draft plan and draft environmental impact

statement. The 90-day period shail begin when the

Environmental Protection Agency publishes a notice of

the filing of the draft environmental impact statement

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in the Federal Register.

(f) Public notice and opportunity for participation in

resource mangement plan preparation shall be

appropriate to the areas and people involved and shall

be provided at the following specific points in the

planning process:

(1) General notice at the outset of the process inviting

participation in the identification of issues (See

$§1610.2(c) and 1610.4—1);

(2) Review of the proposed planning criteria (See

§1610.4-2);

(3) Publication of the draft resource management plan

and draft environmental impact statement (See

§1610.4—7);

(4) Publication of the proposed resource management

plan and final environmental impact statement which

triggers the opportunity for protest (See §§1610.4-8

and 1610.5—1(b)); and

(5) Public notice and comment on any significant change

made to the plan as a result of action on a protest (See

§1610.5-1(b)).

(g) BLM will make copies of an approved resource

management plan and amendments reasonably

available for public review. Upon request, we will make

single copies available to the public during the public

participation process. After BLM approves a plan,

amendment, or revision we may charge a fee for

additional copies. We will also have copies available for

public review at the:

(1) State Office that has jurisdiction over the lands,

(2) Field Office that prepared the plan; and

(3) District Office, if any, having jurisdiction over the

Field Office that prepared the plan.

(h) Supporting documents to a resource management

plan shall be available for public review at the office

80a

where the plan was prepared.

(i) Fees for reproducing requested documents beyond

those used as part of the public participation activities

and other than single copies of the printed plan

amendment or revision may be charged according to

the Department of the Interior schedule for Freedom of

Information Act requests in 43 CFR part 2.

(j) When resource management plans involve areas of

potential mining for coal by means other than

underground mining, and the surface is privately

owned, the Bureau of Land Management shall consult

with all surface owners who meet the criteria in

§3400.0-5 of this title. Contact shall be made in

accordance with subpart 3427 of this title and shall

provide time to fully consider surface owner views. This

contact may be made by mail or in person by the Field

Manager or his/her appropriate representative. A

period of at least 30 days from the time of contact shall

be provided for surface owners to convey their

preference to the Field Manager.

(k) If the plan involves potential for coal leasing, a

public hearing shall be provided prior to the approval of

the plan, if requested by any person having an interest

which is, or may be, adversely affected by

implementation of such plan. The hearing shall be

conducted as prescribed in §3420.1-5 of this title and

may be combined with a regularly scheduled public

meeting. The authorized officer conducting the hearing

shall:

(1) Publish a notice of the hearing in a newspaper of

general circulation in the affected geographical area at

least once a week for 2 consecutive weeks;

(2) Provide an opportunity for testimony by anyone

who so desires; and

(3) Prepare a record of the proceedings of the hearing.

S8la

2005 CFR 43 §1610.5-3

(a) All future resource management authorizations and

actions, as well as budget or other action proposals to

higher levels in the Bureau of Land Management and

Department, and subsequent more detailed or specific

planning, shall conform to the approved plan.

(b) After a plan is approved or amended, and if

otherwise authorized by law, regulation, contract,

permit, cooperative agreement or other instrument of

occupancy and use, the Field Manager shall take

appropriate measures, subject to valid existing rights,

to make operations and activities under existing

permits, contracts, cooperative agreements or other

instruments for occupancy and use, conform to the

approved plan or amendment within a reasonable

period of time. Any person adversely affected by a

specific action being proposed to implement some

portion of a resource management plan or amendment

may appeal such action pursuant to 43 CFR 4.400 at the

time the action is proposed for implementation.

(c) If a proposed action is not in conformance, and

warrants further consideration before a plan revision is

scheduled, such consideration shall be through a plan

amendment in accordance with the provisions of

$1610.5-5 of this title.

(d) More detailed and site specific plans for coal, oil

shale and tar sand resources shall be prepared in

accordance with specific regulations for those

resources: Group 3400 of this title for coal; Group 3900

of this title for oil shale; and part 3140 of this title for

tar sand. These activity plans shall be in conformance

with land use plans prepared and approved under the

provisions of this part.

2005 CFR 43 §1610.5-5

A resource management plan may be changed through

amendment. An amendment shall be initiated by the

need to consider monitoring and evaluation findings,

new data, new or revised policy, a change in

circumstances or a proposed action that may result in a

change in the scope of resource uses or a change in the

terms, conditions and decisions of the approved plan.

An amendment shall be made through an

environmental assessment of the proposed change, or

an environmental impact statement, if necessary, public

involvement as prescribed in §1610.2 of this title,

interagency coordination and consistency

determination as prescribed in §1610.3 of this title and

any other data or analysis that may be appropriate. In

all cases, the effect of the amendment on the plan shall

be evaluated. If the amendment is being considered in

response to a specific proposal, the analysis required for

the proposal and for the amendment may occur

simultaneously. ’

(a) If the environmental assessment does not disclose

significant impact, a finding of no significant impact

may be made by the Field Manager. The Field Manager

shall then make a recommendation on the amendment

to the State Director for approval, and upon approval,

the Field Manager shall issue a public notice of the

action taken on the amendment. If the amendment is

approved, it may be implemented 30 days after such

notice.

(b) If a decision is made to prepare an environmental

impact statement, the amending process shall follow

the same procedure required for the preparation and

approval of the plan, but consideration shall be limited

to that portion of the plan being considered for

83a

amendment. If several plans are being amended

simultaneously, a single environmental impact

statement may be prepared to cover all amendments.

2005 CFR 43 §1610.5-6

A resource management plan shall be revised as

necessary, based on monitoring and evaluation findings

(§1610.4-9), new data, new or revised policy and

changes in circumstances affecting the entire plan or

major portions of the plan. Revisions shall comply with

all of the requirements of these regulations for

preparing and approving an original resource

management plan.

43 CFR § 8340.0-5 Definitions.

As used in this part:

(a) Off-road vehicle means any motorized vehicle

capable of, or designed for, travel on or immediately

over land, water, or other natural terrain, excluding:

(1) Any nonamphibious registered motorboat;

(2) Any military, fire, emergency, or law enforcement

vehicle while being used for emergency purposes;

(3)-Any-vehicle whose use is expressly authorized by

the authorized officer, or otherwise officially approved;

(4) Vehicles in official use; and

(5) Any combat or combat support vehicle when used in

times of national defense emergencies.

(b) Public lands means any lands the surface of which is

administered by the Bureau of Land Management.

(c) Bureau means the Bureau of Land Management.

(d) Official use means use by an employee, agent, or

designated representative of the Federal Government

or one of its contractors, in the course of his

84a

employment, agency, or representation.

(e) Planning system means the approach provided in

Bureau regulations, directives and manuals to

formulate multiple use plans for the public lands. This

approach provides for public participation within the

system.

(f) Open area means an area where all types of vehicle

use is permitted at all times, anywhere in the area

subject to the operating regulations and vehicle

standards set forth in subparts 8341 and 8342 of this

title.

(g) Limited area means an area restricted at certain

times, in certain areas, and/or to certain vehicular use.

These restrictions may be of any type, but can

generally be accommodated within the following type of

categories: Numbers of vehicles; types of vehicles; time

or season of vehicle use; permitted or licensed use only;

use on existing roads and trails; use on designated

roads and trails; and other restrictions.

(h) Closed area means an area where off-road vehicle

use is prohibited. Use of off-road vehicles in closed

areas may be allowed for certain reasons; however,

such use shall be made only with the approval of the

authorized officer.

(i) Spark arrester is any device which traps or destroys

80 percent or more of the exhaust particles to which it

is subjected.

43 CFR § 8341.2 Special rules.

(a) Notwithstanding the consultation provisions in

§8342.2(a), where the authorized officer determines that

off-road vehicles are causing or will cause considerable

adverse effects upon soil, vegetation, wildlife, wildlife

habitat, cultural resources, historical resources,

85a

threatened or endangered species, wilderness

suitability, other authorized uses, or other resources,

the authorized officer shall immediately close the areas

affected to the type(s) of vehicle causing the adverse

effect until the adverse effects are eliminated and

measures implemented to prevent recurrence. Such

closures will not prevent designation in accordance with

procedures in subpart 8342 of this part, but these lands

shall net be opened to the type(s) of off-road vehicle to

which it was closed unless the authorized officer

determines that the adverse effects have been

eliminated and measures implemented to prevent

recurrence.

(b) Each State director is authorized to close portions of

the public lands to use by off-road vehicles, except

those areas or trails which are suitable and specifically

designated as open to such use pursuant to subpart

8342 of this part.

43 CFR § 8364.1 Closure and restriction orders.

(a) To protect persons, property, and public lands and

resources, the authorized officer may issue an order to

close or restrict use of designated public lands.

(b) Each order shall:

(1) Identify the public lands, roads, trails or waterways

that are closed to entry or restricted as to use;

(2) Specify the uses that are restricted;

(3) Specify the period of time during which the closure

or restriction shall apply;

(4) Identify those persons who are exempt from the

closure or restrictions;

(5) Be posted in the local Bureau of Land Management

_ Office having jurisdiction over the lands to which the

order applies;

86a

(6) Be posted at places near and/or within the area to

_ which the closure or restriction applies, in such manner

and location as is reasonable to bring prohibitions to the

attention of users;

(7) Include a statement on the reasons for the closure;

and

(c) In issuing orders pursuant to this section, the

authorized officer shall publish them in the Federal

Register.

(d) Any person who fails to comply with a closure or

restriction order issued under this subpart may be

subject to the penalties provided in §8360.0-7 of this

title.

40 CFR § 1502.7 Page limits.

The text of final environmental impact statements (e.g.,

paragraphs (d) through (g) of §1502.10) shall normally

be less than 150 pages and for proposals of unusual

scope or complexity shall normally be less than 300

pages.

40 CFR § 1506.11 Emergencies.

Where emergency circumstances make it necessary to

take an action with significant environmental impact

without observing the provisions of these regulations,

the Federal agency taking the action should consult

with the Council about alternative arrangeinents.

Agencies and the Council will limit such arrangements

to actions necessary to control the immediate impacts of

the emergency. Other actions remain subject to NEPA

review.

87a

§ 1508.9 Environmental assessment.

Environmental assessment:

(a) Means a concise public document for which a

Federal agency is responsible that serves to:

(1) Briefly provide sufficient evidence and analysis for

determining whether to prepare an environmental

impact statement or a finding of no significant impact.

(2) Aid an agency's compliance with the Act when no

environmental impact statement is necessary.

(3) Facilitate preparation of a statement when one is

necessary.

(b) Shall include brief discussions of the need for the

proposal, of alternatives as required by section

102(2)(E), of the environmental impacts of the proposed

action and alternatives, and a listing of agencies and

persons consulted.

88a

BLM Information Clearance Officer.

[FR Doc. 99-10544 Filed 4-26-99; 8:45 am]

BILLING CODE 4310-84-M

DEPARTMENT OF THE INTERIOR

Bureau of Land Management

[UT-020-09-1220-00]

Notice of Closure of Public Lands

AGENCY: Bureau of Land Management, Interior.

ACTION: Notice of closure of public lands.

SUMMARY: Notice is hereby given that effective

immediately, the public lands within Broad Hollow

Unit, Kilgore Basin Unit, Meadows Unit, as legally

described below, are seasonally closed from January 1

to April 30 to all motorized vehicle use. The purpose of

this closure is to protect wildlife, including critical deer

and sage grouse habitat. Exemptions to this closure will

apply to administrative personnel of the Bureau of

Land Management, BLM authorized permittees and

Law Enforcement Personnel. Other exemptions to this

closure order may be made on a case by case basis by

the authorized officer. This seasonal closure will remain

in effect until further notice.

LEGAL DESCRIPTION: This closure order applies

to the following lands administered by the Bureau of

Land Management, Salt Lake Field Office, within Box

Elder County, Utah.

Broad Hollow Unit

T.14 N., R.16 W., SLBM

All public lands located in:

Sec. 8 and 9 south of the Upper Narrows

Road,

Sec. 10 SW1A, SL2S12SE14,

Sec. 14 W12,

Sec. 17 east of the Upper Narrows Road,

and

Sec. 20 E12, SY2SW1/4.

Kilgore Basin Unit

T.9 N., R.18 W., SLBM

All public lands located in:

Sec. 6 south of Toms Cabin Road,

Sec. 8 west of the Old Grouse Creek Road,

See. 18,

Sec. 20 west of the Old Grouse Creek Road,

and

Sec. 30 north of Cabin Springs Road.

T.10 N., R.18 W., SLBM

All public lands in

Sec. 30 located south of Toms Cabin Road.

T.9 N., R.19 W., SLBM

All public lands located in:

Sec. 4, 10, 12, 14, 24, 26,

Sec. 22 E12, EV2NWI1A, SW1A, and

all of See. 28 and 34 north of Cabin Springs Road.

T.10 N., R.19 W., SLBM

The following public lands west of Toms Cabin Road:

Sec. 28 E12, Lots 14, SEIANW14,

E128SW14,

Sec. 34 E12, E12W12, NWIANWIA,

WI12SWIA.

Meadows Unit

T.11 N., R.16 W., SLBM

All of See. 22, 23, 26, 27, 28, 34, and

All of the public lands in Sec. 33 located north of the

Ingham Pass County Road.

‘FOR FURTHER INFORMATION CONTACT: The

Bureau of Land Management, Salt Lake Field Office,

2370 S. 2300 W., SLC, UT 84119, telephone (801)977-

4300.

90a

SUPPLEM?L../TARY INFORMATION: The

authority for this closure is 43 CFR 8341.2 and 43 CFR

8364.1. Violations of this closure are punishable by a

fine not to exceed $1,000 and/or imprisonment not to

exceed 12 months as provided in 43 CFR 8360.0-7.

Glenn A. Carpenter,

Salt Lake Field Manager.

[FR Doc. 99-10531 Filed 4-26-99; 8:45 am]

BILLING CODE 4310-DQ-P

DEPARTMENT OF THE INTERIOR

Bureau of Land Management

[UT-020-00-1220-00]

Notice of Closure of Public Lands

AGENCY: Bureau of Land Management, Interior.

ACTION: Notice of Closure of Certain Public Lands in

Box Elder County, Utah to Off Road Vehicle Use.

SUMMARY: Notice is hereby given that effective

immediately, selected public lands administered by the

Bureau of Land Management (BLM), Salt Lake Field

Office, within western Box Elder County are closed to

off road vehicle (ORV) (also commonly referred to as off

highway vehicle—OHV) use on an interim emergency

basis. This action will allow BLM to address concerns

related to unrestricted cross country travel in the

specific places where we now have resource damage.

The purpose of this closure is to protect wildlife,

wildlife habitat, rangeland resources, soil, vegetation,

cultural resources, historical resources, and other

resources from ongoing and imminent adverse impacts

from ORV use. Exemptions to this closure will apply

for administrative and management purposes for the

Bureau of Land Management, BLM authorized

permittees, and law enforcement personnel. Other

9la

exemptions to this closure order may be made on a case

by case basis by the authorized officer. This emergency

closure will remain in effect until BLM completes a land

use plan amendment for OHV management.

FOR FURTHER INFORMATION CONTACT:

Alice Stephenson, Environmental Coordinator, Bureau

of Land Management, Salt Lake Field Office, 2370 S.

2300 W., Salt Lake City, UT 84119, telephone (801) 977-—

4300.

SUPPLEMENTARY INFORMATION: As _ an

interim measure, BLM is joining Box Elder County, the

U.S. Forest Service and the State of Utah Sovereign

Lands in imposing restrictions for OHV use on public

lands in western Box Elder County. The BLM is

temporarily closing selected public lands to off highway

vehicle use consistent with the County’s access road

management plan and related map. The new

restrictions for public lands, which are identified on the

map, include full closure of very limited lands, seasonal

closures of specific lands and closures to cross country

travel for certain lands. This plan was adopted on July

7, 1998, by the Box Elder County Commission as

Ordinance No. 222 which applies to western Box Elder

County. This ordinance is the product of

recommendations made by the West Box Elder Access

Management Team with extensive public involvement

and support from BLM, State Sovereign Lands, and the

U.S. Forest Service (USFS). With this interim

emergency action, BLM joins the County, USFS and

State Sovereign Lands in providing consistent OHV

management in western Box Elder County regardless

of land ownership. Without this action, and because all

other lands in western Box Elder County have OHV

restrictions, BLM public lands, which are currently

open to OHV use without restriction, would be subject

92a

to increasing impacts from OHV use. These closures

are a temporary action to protect public lands highway

vehicle—OHV) use on an interim emergency basis. This

action will allow BLM to address concerns related to

unrestricted cross country travel in the specific places

where we now have resource damage. The purpose of

this closure is to protect wildlife, wildlife habitat,

rangeland resources, soil, vegetation, cultural

resources, historical resources, and other resources

from ongoing and imminent adverse impacts from ORV

use. Exemptions to this closure will apply for

administrative and management purposes for the

Bureau of Land Management, BLM authorized

permittees, and law enforcement personnel. Other

exemptions to this closure order may be made on a case

by case basis by the authorized officer. This emergency

closure will remain in effect until BLM completes a land

use plan amendment for OHV management.

FOR FURTHER INFORMATION CONTACT:

Alice Stephenson, Environmental Coordinator, Bureau

of Land Management, Salt Lake Field Office, 2370 S.

2300 W., Salt Lake City, UT 84119, telephone (801) 977-

4300.

SUPPLEMENTARY INFORMATION: As _ an

interim measure, BLM is joining Box Elder County, the

U.S. Forest Service and the State of Utah Sovereign

Lands in imposing restrictions for OHV use on public

lands in western Box Elder County. The BLM is

temporarily closing selected public lands to off highway

vehicle use consistent with the County’s access road

management plan and related map. The new

restrictions for public lands, which are identified on the

map, include full closure of very limited lands, seasonal

closures of specific lands and closures to cross country

.travel for certain lands. This plan was adopted on July

93a

7, 1998, by the Box Elder County Commission as

Ordinance No. 222 which applies to western Box Elder

County. This ordinance is the product of

recommendations made by the West Box Elder Access

Management Team with extensive public involvement

and support from BLM, State Sovereign Lands, and the

U.S. Forest Service (USFS). With this interim

emergency action, BLM joins the County, USFS and

State Sovereign Lands in providing consistent OHV

management in western Box Elder County regardless

of land ownership. Without this action, and because all

other lands in western Box Elder County have OHV

restrictions, BLM public lands, which are currently

open to OHV use without restriction, would be subject

to increasing impacts from OHV use. These closures

are a temporary action to protect public lands and

resources until BLM completes the proposed plan

amendment for offhighway vehicle designations for

public lands in Box Elder County, Notice of Intent

published April 15, 1997.

Imposing the OHV use restrictions will protect wildlife,

wildlife habitat, soil, vegetation, cultural resources,

historical resources, and other resources from damage

by off-highway vehicles (OHVs).

This closure shall not be construed as a limitation on

BLM’s future planning and off-highway vehicle route

designations.

The referenced map and ordinance is available for

review at the above address and at the Box Elder

County Mapping Department.

The authority for this closure is 43 CFR 8341.2 and 43

CFR 8364.1.

Violations of this closure are punishable by a fine not to

exceed $1,000 and/or imprisonment not to exceed 12

months as provided in 43 CFR 8360.0-7.

94a

Sally Wisely,

State Director.

[FR Doc. 00-7551 Filed 3-27-00; 8:45 am]

BILLING CODE 4310-DQ-P

DEPARTMENT OF THE INTERIOR

Bureau of Land Management

[UT-062-01-1220-AA]

Notice of Camping and Wood Cutting and Gathering

Restrictions, Moab Field Office

AGENCY: Bureau of Land Management

(BLM), DOI.

ACTION: Notice of camping and wood cutting and

gathering restrictions—

Moab Field Office, Utah.

SUMMARY: This notice, applicable to specified public

lands administered by the BLM Moab Field Office,

limits camping to developed campgrounds and

designated sites, allows BLM to limit the size of

designated camping areas, and requires the use of

portable toilets at these designated sites where toilets

are not provided. The notice also prohibits wood cutting

and gathering, including Christmas tree cutting, for

these intensively used areas and the Sand Flats

Recreation Area. These actions are implemented on an

interim basis to protect natural resources pending

revision of the Resource Management Plan (RMP) for

the area administered by the Moab Field Office.

DATES: This notice is effective January

22, 2001, and shall remain in effect until modified or the

RMP is amended.

FOR FURTHER INFORMATION CONTACT:

Russell von Koch, Resource Advisor, BLM Moab Field

Office, 82 East Dogwood Avenue, Moab, Utah 84532 or

telephone 435-259--2100.

95a

SUPPLEMENTARY INFORMATION: Frequent

use of public lands near Moab, Utah for camping at

undeveloped sites and associated wood cutting and

gathering is damaging soils, vegetation, and scenic

values at local destination areas and along popular

trails and roads. The following actions are necessary to

limit impacts to natural resource values and maintain

the quality of recreation opportunities.

Camping Restrictions Along Highway and Road

Corridors

Camping with vehicles on BLM administered public

land within one-half mile of the following highways and

roads is limited to developed campgrounds and

designated sites on a year-round basis to protect scenic

values, reduce damage to soils and vegetation, and

provide for public safety:

(1) Utah Highway 313;

(2) The Island in the Sky entrance road between Utah

Highway 313 and Canyonlands National Park;

(3) The Gemini Bridges route (primarily Grand Co. No.

118) and the spur route from it into “The Bride

Canyon;”

(4) The Kane Creek Canyon Rim route from U.S.

Highway 191 to where it crosses the eastern boundary

of section 20, T. 27 S., R. 22 E. exclusive of the state and

private land west of BKiue Hill; and (5) Lands within

Long Canyon north of the Colorado Riverway

Recreation Area and south of the State land at the head

of the canyon within one-half mile of the Long Canyon

Road (Grand Co. No. 135).

Other Camping Restrictions

Camping with vehicles on BLM administered public

lands is also limited for the above reasons to developed

96a

campgrounds and designated sites on a year-round

basis in the following areas:

(1) The lands along both sides of U.S. 191 bounded by

Arches National Park on the east, private lands in

Moab Valley on the south, the Potash Rail Spur on the

west, and private and State lar 1 near the lower Gemini

Bridges Trailhead on the north;

(2) Lands located between the road to Nefertiti Rapid

(Grand Co. No. 154) and the shoreline of the Green

River along the east side of the river from the public

land boundary near Swaseys Take-out upstream to the

upper end of the Nefertiti Rapid parking area;

(3) Lands including the Pace Hill, Castle Rock, Ida

Gulch, Professor Valley, Mary Jane Canyon, and the

upper Onion Creek areas that are south of the Colorado

Riverway Recreation Area as established in 1992,

below the rims of Adobe and Fisher Mesas, and west of

the private land in Fisher Valley;

(4) Lands along the Potash Trail (Grand Co. No. 134,

the road between the western end of Utah Highway

279 and Canyonlands National Park) that are east of

Canyonlands National Park; south of Dead Horse Point

State Park, and other state and private lands, north of

the Colorado River, and west of the Colorado Riverway

Recreation Area as established in 1992, excluding

riverside campsites accessible by water craft from the

Colorado River; and

(5) Lands within the Mill Creek Canyon Planning Area.

Backpack type camping within the Mill Creek Planning

Area is allowed at sites one-quarter mile or farther

from designated roads and greater than 100 feet from

Mill Creek and from archaeological sites. All camping

continues to be prohibited in the Powerdam and Flat

Pass areas under a previously published notice.

97a

For all of the above locations, at developed

campground

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