Jul 31: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-35818 & 11-35821. Appealed from the United States District Court for the District of Montana. In this partially split decision, the Majority Appeals Court explains that plaintiff environmental groups challenge the Bureau of Land Management's (BLM) Resource Management Plan (RMP) for the Upper Missouri River Breaks National Monument (Monument). The district court granted summary judgment to the defendants on all claims.
The Majority rules, "We affirm in part, reverse in part and remand. We hold that BLM complied with the Federal Land Policy and Management Act (FLPMA) and the National Environmental Policy Act (NEPA) but violated the National Historic Preservation Act (NHPA)."
By way of background, the Antiquities Act authorizes the President of the United States to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments. 16 U.S.C. § 431.
On the NHPA claims, Montana Wilderness Association (MWA) argues that BLM was required to conduct a Class III inventory in the areas where historic sites are most likely to be found (the river corridor) and the areas in which historic sites are most likely to be damaged or destroyed (roads, airstrips and dispersed camping sites). The Wilderness Society (TWS) argues that BLM should be required to conduct a Class III inventory for the most affected areas, which TWS says are the open road corridors. The government argues that BLM's reliance on a Class I survey was reasonable and in good faith, citing several considerations.
The Majority indicates, ". . .we hold that BLM failed to make a reasonable effort to identify historical and cultural resources. Consistent with BLM's own policy documents, BLM is required to conduct Class III inventories for roads, ways and airstrips that have not been surveyed previously or were surveyed decades ago."
The Majority concludes, "We conclude that the district court properly granted summary judgment in favor of the defendants on the plaintiffs' FLPMA and NEPA claims. We hold that the court erred by granting summary judgment in favor of the defendants on the plaintiffs' NHPA claim. We vacate that portion of the judgment and remand with instructions to enter judgment in favor of the plaintiffs on the NHPA claim and to enter an appropriate order requiring BLM to conduct Class III surveys with respect to roads, ways and airstrips that have not been subject to recent Class III surveys. Each party shall bear its own costs of appeal."
The partially dissent Justice indicated that he disagreed with "the majority's conclusion that the RMP's definition of 'road' for purposes of the off-road travel ban is reasonable." He said, "I conclude that BLM's
adoption of this definition of 'road' violates the Proclamation, FLPMA, and the Administrative Procedure Act (APA) because BLM did not explain how its expansive definition of 'road' serves the Proclamation's essential purpose of protecting Monument objects. . . I disagree that BLM's definition of 'road' can survive APA review. . ."
Access the complete opinion (click here). [#Land, #Transport, #CA9]
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