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Sierra Club v. Clark

ELR Citation: 16 ELR 20409
Nos. 84-6483, 774 F.2d 1406/(9th Cir., 10/25/1985)

The court holds that a Bureau of Land Management (BLM) decision to grant a permit for an off-road vehicle (ORV) race across the California Desert Conservation Area (CDCA) does not violate the Federal Land Policy Management Act’s (FLPMA’s) requirements of nondegradation of a wilderness study area (WSA). After noting that the appropriate standard of review is whether the agency’s action was arbitrary and capricious, the court rules that BLM’s decision to permit the race in 1983 did not violate the agency’s Interim Management Policy on nonimpairment promulgated under FLPMA §603(c). Although Amendment No. 6 to the CDCA Management Plan, which allowed the race, unquestionably anticipated some adverse impacts on the area, BLM’s interpretation of its own regulations are to be given considerable deference. The agency’s construction of the phrase “substantially unnoticeable in the area as a whole” is reasonable; BLM may focus on nonimpairment of the entire WSA rather than on particular parcels within the area.

The court next rules that Amendment No. 6 is a proper exercise of BLM’s discretion under FLPMA §602 to provide for multiple use of the desert. FLPMA expressly requires the desert plan to implement the principles of multiple use, and Executive Order No. 11644, which predates FLPMA, specifically authorizes BLM to promulgate regulations governing the use of public lands by ORVs. BLM had to weigh the damage caused by uncontrolled “protest rides” across the desert during the years when the annual race was banned, against the damage done if a designated route is used accompanied by specific mitigation measures. The court also rules that BLM’s action is not an abuse of discretion under FLPMA §302(b) requiring the agency to prevent unnecessary degradation of the public lands, since Congress has given its blessing to ORV use on public lands. The court rules that BLM’s failure to confer with the State Historical Preservation Officer (SHPO) does not violate the requirements of §106 of the National Historic Preservation Act. The SHPO’s concurrence in the issuance of the permit satisfies the Act’s intent. The court next holds that the agency decision was not arbitrary, capricious, or an abuse of discretion under the Administrative Procedure Act since BLM was following Congress’ mandate and made reasonable attempts to consider critics’ concerns.

Finally, the court holds that BLM’s environmental impact statement was adequate. The court rejects plaintiff’s contentions that BLM should have chosen the no action alternative and that the agency’s concern about the protest rides was unreasonable. The court also rules that BLM’s discussion of mitigation measures was adequate.

Counsel for Plaintiffs-Appellants
Michael R. Sherwood, Deborah S. Reames
Sierra Club Legal Defense Fund, Inc.
2044 Fillmore St., San Francisco CA 94115
(415) 567-6100

Counsel for Defendants-Appellees
James R. Arnold, Frederick M. Brosio Jr., Ass’t U.S. Attorneys
312 N. Spring St., Los Angeles CA 90012
(213) 688-2434