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ONRC Action v. Bureau of Land Management

Citation: 28 ELR 21404
No. 97-35467, 150 F.3d 1132/(9th Cir., 07/29/1998)

The court holds that environmental groups have no standing under the Administrative Procedure Act (APA) to challenge the U.S. Bureau of Land Management's (BLM's) failure to halt actions adversely affecting the environment during the completion of an environmental impact statement (EIS) of a regional ecosystem management plan. The groups allege that the BLM's refusal to institute a moratorium on regional land transactions, logging permits, and juniper extraction violated the National Environmental Policy Act (NEPA) and the Federal Land Policy Management Act (FLPMA). The court first holds that this case presents a situation where there is no identifiable agency order, regulation, policy, or plan that may be subject to a challenge as a final agency action. The BLM did not evaluate the merits of the groups' contentions to arrive at a reasoned, deliberate decision because it never intended to consider a change of status quo. Even in a letter responding to the groups' petition for a moratorium, the BLM merely informed the groups that it would not consider their requests unless raised in the context of site-specific decisions. Therefore, the district court did not err in finding that the BLM's failure to implement a moratorium was not a final agency action.

The court next holds that the district court erroneously concluded that because the groups are attempting to halt agency action they are precluded from bringing their challenge under the APA. The court must consider not whether the groups seek to enjoin or compel the BLM's action, but whether the BLM has a clear duty to act under NEPA or FLPMA. The court then holds that 40 C.F.R. § 1506.1(c) (1997), which provides an exception to an agency's duty under NEPA where the action in question is covered by an existing program statement, applies to the facts in this case. The regional ecosystem management plan is an alternate way to manage land and resources, the current management of which is guided by existing resource management plans. Even if parts of the regional ecosystem management plan replace some of the existing resource management plans, there is no provision in NEPA requiring that the existing statements not be subject to change. The court also holds that the BLM's interpretation that nothing in FLPMA or its regulations provides a clear statutory duty with which a court can require the BLM to comply is reasonable.

Counsel for Plaintiffs
Marianne G. Dugan
Western Environmental Law Center
1216 Lincoln St., Eugene OR 97401
(503) 485-2471

Counsel for Defendant
Ellen J. Durkee
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Goodwin and Brunetti, JJ.