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National Trust for Historic Preservation v. Suazo

United States District Court, D. Arizona

March 27, 2015

National Trust for Historic Preservation, et al., Plaintiffs,
Raymond Suazo, et al., Defendants.


DAVID G. CAMPBELL, District Judge.

This case involves the Bureau of Land Management's decision to allow recreational target shooting throughout the Sonoran Desert National Monument. Plaintiffs claim that this decision will lead to irreversible damage to the diverse wildlife and precious artifacts of the Monument. Plaintiffs claim that Defendants have violated their duty under the Federal Land Policy and Management Act to protect the Monument, and that Defendants' environmental impact statement fails to comply with the National Environmental Policy Act.

The parties have filed motions for summary judgment. Docs. 32, 35. The motions are fully briefed, and the Court heard oral argument on March 25, 2015. The Court will grant Plaintiffs' motion on two of their claims, vacate the portion of the BLM decision that relates to recreational shooting, and remand that portion to BLM for further consideration in light of this order.

I. Background.

"The President of the United States is authorized, in his discretion, to declare by public proclamation historic landmarks... and other objects of historic or scientific interest that are situated upon the lands owned or controlled by... the United States to be national monuments[.]" 16 U.S.C. § 431. On January 17, 2001, President Clinton exercised this power and signed a presidential proclamation ("Proclamation") establishing the Sonoran Desert National Monument ("Monument"), which comprises almost 500, 000 acres of Southern Arizona. A.R. 870-73; 66 Fed. Reg. 7354.

The President described the Monument as a "magnificent example of untrammeled Sonoran desert landscape" with "distinct mountain ranges separated by wide valleys[.]" A.R. 870. The President noted the "spectacular diversity of plant... species, " including forests of saguaro cacti, palo verde trees, endangered acuna cacti, and "a variety of herbaceous plants." Id. The Monument also features a wide variety of wildlife, including Sonoran pronghorns, desert bighorn sheep, javelina, Sonoran desert tortoises, and several species of owls. A.R. 871. The President described the Monument's "many significant archaeological and historic sites, including rock art sites, lithic quarries, ... scattered artifacts, " and the Juan Bautista de Anza National Historic Trail. Id.

The President set apart and reserved, "for the purpose of protecting the objects identified above, " the specified lands as the Sonoran Desert National Monument. Id. The President directed the "Secretary of the Interior [to] manage the Monument through the Bureau of Land Management, pursuant to applicable legal authorities, to implement the purposes of this proclamation... [and to] prepare a management plan that addresses the actions... necessary to protect the objects identified in this proclamation." A.R. 872.

On April 24, 2002, the Bureau of Land Management ("BLM") published in the federal register a notice of its intent to prepare a resource management plan ("RMP") and an environmental impact statement ("EIS") for the Monument. A.R. 962.[1] BLM invited Indian tribes, government agencies, and the public to participate in this process. A.R. 1015-44. BLM received thousands of letters and comments. A.R. 3245-553, 4209-351 ("Scoping Report"). An issue that quickly emerged was how to address the recreational target shooting that was taking place throughout the Monument. A.R. 4090, 4264, 6315. As BLM later put it, "[s]hooting activities including target shooting, ' shooting practice, ' plinking, ' sporting clays, ' skeet', ' and sighting-in' have been occurring in the [Monument] since firearms were introduced to the region.... Increasingly, Arizona's broad public demand for places to shoot is being shifted to public lands managed by the BLM." A.R. 14464-65. BLM decided to evaluate the effects of shooting on Monument objects and the areas where shooting might be appropriate. A.R. 4264-65.

In February of 2005, Professor Pam Foti completed a report for BLM that analyzed the impacts of recreational shooting on the Monument. A.R. 6591. The report found that shooting was occurring on 69 of the 348 sites in the Monument that were surveyed. A.R. 6607. Approximately 28 of these 69 sites had damage to saguaro cacti, with the damage being "extreme" in 16 of the sites. A.R. 6614. Additionally, there was evidence of shooting on approximately 50 percent of the sites within the Monument identified as "extremely" and "heavily" impacted by human activity. A.R. 6619-20. As BLM prepared the Draft RMP and EIS, it continued to analyze and discuss the impacts of and solutions for recreational shooting. A.R. XXXXX-XXX, XXXXX-XXXX.

In August of 2011, BLM published its Draft RMP and EIS (collectively, the "Draft EIS"). A.R. 14061. The Draft EIS laid out five alternative plans for managing the Monument. A.R. XXXXX-XXX, 14146-55; see 40 C.F.R. § 1502.14. With respect to shooting, the alternatives ranged from allowing shooting throughout the Monument to prohibiting it entirely. A.R. 14151-55, 14292. The Draft EIS highlighted a number of concerns arising from recreational shooting in the Monument, including "the health and safety of visitors, " "[a]ccumulation of abandoned household refuse used as targets, " the "gradual degradation or destruction of natural resources, " the use of signage and structures for targets, and damage to trees and plants. A.R. 14465. The Draft EIS found that allowing recreational shooting throughout the Monument caused moderate impacts to cultural, soil, and water resources, as well as to wilderness characteristics, wildlife, and public safety.[2] A.R. 15022-61. The Draft EIS noted that during "October-November 2008, the BLM removed 12, 000 pounds of debris from recreational target shooting sites adjacent to the northern boundary of the Monument." A.R. 14466.

Appendix G to the Draft EIS included a formal analysis of the effects of recreational shooting. A.R. XXXXX-XXX. That "analysis was undertaken to determine areas of the [Monument] where continued recreational target shooting would cause unacceptable impact to the objects for which the [Monument] was designated, as well as to identify areas where such activity is compatible with such objects." A.R. 15306. Based on potential impacts on Monument "objects" - including the "palo verde-mixed cacti vegetation community, " the habitat of the Sonoran desert tortoise, and the Juan Bautista de Anza Historic Trail - the first phase of the analysis concluded that 80.2% of the Monument was unsuitable for recreational shooting. A.R. 15314. The analysis then examined the remaining areas of the Monument for the "presence of monument objects, " potential safety issues, motor vehicle access, and the suitability of the areas for target shooting. A.R. 15309-16. The analysis concluded "that shooting activity, for reasons of potential impacts to Monument objects, visitor safety, accessibility, and physical suitability of terrain, would likely be limited to one area, the Hidden Valley (C) location." A.R. 15316. Because making this area available for shooting would be impractical, and because "BLM does not compromise on the safety of its visitors, " the Appendix G analysis recommended that recreational shooting be prohibited throughout the Monument. Id. The Draft EIS adopted this recommendation. A.R. 14154-55, 14292.[3]

After publication of the Draft EIS, the required 90-day public comment period began. A.R. 23750. BLM also held eight public meetings. Id. Many persons and organizations submitted comments protesting BLM's decision to ban recreational shooting in the Monument. A.R. 21431-35, 21449, 21500, 21550-51, 21556-68. BLM drafted responses to these comments and planned to stand by its decision to ban shooting throughout the Monument. A.R. 19087 ("No comments received pertaining to target shooting caused us to reconsider the alternatives or the decision in the Proposed Alternative."), 19789, 20153-65 (comments and drafted responses). By April 2012, BLM had prepared the Proposed RMP and Final EIS (collectively, the "Final EIS"), which included the ban on shooting. A.R. 20141-43. The Final EIS had been sent to the printer and provided to the EPA for publication in the Federal Register. A.R. 20142. Then, on April 27, 2012, BLM received a directive from the Washington, D.C. office of the Department of the Interior ("DOI") that the Final EIS must be changed to allow for recreational shooting throughout the Monument. Id. ; A.R. 20124-25.

Although it appears that no reason was given by DOI at the time, subsequent BLM documents state that the change resulted from DOI's consultation with the Wildlife and Hunting Heritage Conservation Council, an advisory group established under the Federal Advisory Committee Act, and "feedback from the National Rifle Association and local shooting enthusiasts in support of keeping the monument open for recreational target shooting." A.R. 20175. Nothing in the record cited by the parties suggests that the change resulted from an evaluation of the information and data collected in the Draft EIS or the Final EIS.

Some BLM employees thought the DOI directive was not consistent with the Proclamation's mandate to protect Monument objects. A.R. 20124, 20127. Nevertheless, in June of 2012, BLM published the Final EIS with the change. A.R. 20278. Identifying recreational shooting as an "important recreational activity" in the Monument for which "use has increased dramatically during the past five years, " the Final EIS announced that recreational shooting would be allowed throughout the Monument. A.R. 20382-83; 20574. To mitigate the damage that shooting was causing to Monument objects, the Final EIS outlined "a comprehensive suite of administrative actions and best management practices." A.R. 20383. These included coordinating with the shooting community to develop a "comprehensive, activity-level recreation" plan for shooting, disseminating educational materials and signs to inform the public about best-shooting practices, dedicating law enforcement personnel to deter illegal shooting practices, and monitoring shooting areas for improper activity. A.R. 20576-77. The Final EIS also proposed a list of supplementary rules that "may" be issued in the future, such as restricting shooting to daylight hours, restricting the types of targets for shooting, and requiring persons to remove all debris produced by target shooting. Id. ; see also A.R. 22083-86 (proposing best management practices for target shooting).

The Final EIS retained Appendix G from the Draft EIS and its analysis of the effects of recreational shooting in the Monument, as well as its suggestion that shooting be prohibited throughout the Monument. A.R. 22026-52. The Final EIS also repeated the Draft EIS's conclusion that allowing recreational shooting would cause moderate impacts to a variety of resources. See A.R. 20800-21385. For example, the document stated that "[i]mpacts could include but are not limited to the direct loss, mortality or injury of individual animal species and avoidance of traditional habitats while target shooting is taking place." A.R. 21032. The Final EIS stated, however, that these moderate impacts should greatly decrease "if Management and Administrative Actions designed to change the conduct of recreational target shooters has [sic] the desired effect[.]" A.R. 20864-65, 20895, 20966, 21005, 21052.

After publication of the Final EIS, BLM received protest letters about its decision to allow recreational shooting. A.R. 24259-60. In response, BLM repeated its intent to allow shooting and to implement "a suite of administrative actions and best management practices to minimize the adverse impacts of recreational target shooting." A.R. 24262. In September of 2012, BLM published its Record of Decision and Approved Resource Management Plan ("ROD"). A.R. 23722. The ROD affirmed the decision to allow shooting throughout the Monument and reiterated the administrative actions BLM would take to mitigate the effects of shooting. A.R. 23829-32.

On September 27, 2013, Plaintiffs Archaeology Southwest, Wilderness Society, and National Trust for Historic Preservation filed this lawsuit. Doc. 1. They sued BLM, DOI, and Raymond Suazo in his official capacity as Arizona State Director of BLM. Id. Plaintiffs claim that these Defendants have violated the Proclamation, the Federal Land Policy and Management Act ("FLPMA"), the National Historic Preservation Act ("NHPA"), the Administrative Procedure Act ("APA"), and the National Environmental Policy Act ("NEPA"). Id. at 15-18. Plaintiffs seek summary judgment on their claims under FLPMA, NEPA, and the APA (Doc. 32), and Defendants request summary judgment on these same claims (Doc. 35).[4]

II. Standard of Review.

The APA governs the Court's review of BLM's compliance with NEPA and FLPMA. W. Watersheds Project v. Abbey, 719 F.3d 1035, 1041 (9th Cir. 2013). The Court may set aside an agency action under the APA only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Agency action should be overturned only when the agency has "relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). "This standard of review is highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision." Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007) (internal quotes and citation omitted). Summary judgment is an appropriate mechanism for reviewing final agency actions because the issues for resolution are those of law. Occidental Eng'g Co. v. I.N.S., 753 F.2d 766, 770 (9th Cir. 1985). The Court's review is limited to the administrative record, to which the parties in this case have stipulated (Docs. 34 at 2, 36 at 2). Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1472 (9th Cir. 1994).

III. FLPMA and the Proclamation.

Plaintiffs argue that BLM's decision to allow recreational shooting throughout the Monument violates FLPMA and the Proclamation because the decision fails to protect the objects of the Monument. The Court agrees.[5]

A. Legal Standards.

FLPMA governs BLM's management of public lands. Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 58 (2004); see Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 875-77 (1990) (explaining history of FLPMA). "FLPMA requires that BLM, under the Secretary of the Interior, develop, maintain, and when appropriate, revise land use plans' to ensure that land management be conducted on the basis of multiple use and sustained yield.'" Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549, 555 (9th Cir. 2006) (quoting 43 U.S.C. §§ 1701(a)(7), 1712(a)). "This multiple-use-and-sustainable-yield mandate guides BLM's management of public lands 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.'" W. Watersheds Project, 719 F.3d at 1042 (quoting 43 U.S.C. § 1732(a)). Under this provision, BLM must manage the Sonoran Desert National Monument in compliance with the terms of the Proclamation. Id.

As discussed above, the Proclamation directs BLM to protect the "objects" of the Monument "pursuant to applicable legal authorities." A.R. 871-72; 66 Fed. Reg. 7354. The Proclamation also describes the protection of Monument objects as "paramount." A.R. 872. The Court agrees with Defendants that the Proclamation's requirement to protect objects "pursuant to applicable legal authorities" means that BLM may manage the Monument with an eye towards multiple-use principles. See In re Mont. Wilderness Ass'n, 807 F.Supp.2d 990, 996 (D. Mont. 2011) ("The interpretation that providing for multiple use was required so long as Monument objects were protected was reasonable."), rev'd on other grounds, 725 F.3d 988 (9th Cir. 2013). The Court also finds that the Proclamation does not require BLM's management decisions to be those that are the most protective of ...

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