Opinion
Case No. 2:99CV852K
December 22, 2000
MEMORANDUM DECISION AND ORDER
This matter is before the court on numerous motions: (1) Plaintiffs Southern Utah Wilderness Alliance, the Wilderness Society, the Sierra Club, the Great Old Broads for Wilderness, Wildlands CPR, Utah Council of Trout Unlimited, Americans Lands Alliance, and the Friends of the Abajos' ("Plaintiffs") Motion for a Preliminary Injunction; (2) Plaintiffs' Motion for Dismissal of Plaintiffs' Ninth Cause of Action; (3) Defendants Bruce Babbitt, Tom Fry and the Bureau of Land Management's ("BLM") Motion to Dismiss Plaintiffs' Ninth Cause of Action with Prejudice; (4) Defendant-Intervenors Utah Shared Access Alliance, Blue Ribbon Coalition, Elite Motorcycle tours, and Anthony Chatterley's ("Recreationists") Motion to Dismiss. An evidentiary hearing on Plaintiffs' Motion for a Preliminary Injunction was held on August 28, 2000 through August 31, 2000. At that hearing, Plaintiffs were represented by Heidi J. McIntosh, Stephen H.M. Bloch, and Robert B. Wiygul. BLM was represented by Stephen Roth and Jeffrey E. Nelson. Recreationists were represented by Paul A. Turcke. Defendant- Intervenors State of Utah, Emery County, Grand County, Kane County, San Juan County, and Wayne County (the "State") was represented by Stephen G. Boyden, Stephen H. Urquhart, and David Blackwell. The State of Utah Institutional Trust Lands ("SITLA") was represented by John W. Andrews. A hearing on the Recreationists' Motion to Dismiss and on Plaintiffs' supplemental NEPA claim was held on December 13, 2000. At that hearing, Plaintiffs were represented by James S. Angell and Stephen H.M. Bloch. BLM was represented by Stephen Roth, Recreationists were represented by Paul A. Turcke, and the State was represented by Stephen G. Boyden.
Before both hearings, the court considered carefully the memoranda and other materials submitted by the parties. Since taking the matter under advisement, the court has further considered the law and facts relating to this motion, the testimony of the witnesses presented at the preliminary injunction hearing and the prior hearing on Plaintiffs' motion for a temporary restraining order, and the arguments presented by counsel. Now being fully advised, the court renders the following Memorandum Decision and Order.
I. BACKGROUND
Plaintiffs have moved the court for a preliminary injunction to prevent the alleged "substantial off-road vehicle ("ORV") damage and impairment to" BLM lands. Plaintiffs contend that BLM is required by federal law to ensure that ORVs do not impair WSAs and to permit ORV use only where the BLM has ensured that it has minimized both environmental impacts and impacts to visitors who do not use ORVs. However, Plaintiffs claim that BLM has failed to perform its statutory and regulatory duties.
The court is faced with the antithetical views of Plaintiffs, on one hand, arguing that they are entitled to the extraordinary relief of a preliminary injunction based on the BLM's alleged failure to carry out its mandatory duties, and Recreationists on the other hand, contending that, not only should the court decline to issue an injunction, but it should go so far as to dismiss Plaintiffs' claims as they pertain to the areas that are the subject of the preliminary injunction motion. Their motion is based on their claim that Plaintiffs have failed to demonstrate that this court has jurisdiction under 5 U.S.C. § 706(1). BLM argues that an injunction should not issue, based on the same jurisdictional argument made by Recreationists, but BLM has declined to join in Recreationists' motion to dismiss Plaintiffs' claims.
Because this court agrees that Plaintiffs have not satisfied their heavy jurisdictional burden in this case and that the claims at issue should be dismissed, Plaintiffs' motion for injunctive relief is moot. Thus, the court will address the parties' claims and arguments in the context of Recreationists' motion to dismiss.
II. RECREATIONISTS' MOTION TO DISMISS
Recreationists argue that Plaintiffs' claims should be dismissed for lack of subject matter jurisdiction under FRCP 12(b)(1). They claim that Plaintiffs' First, Fifth, Sixth, Seventh, and Ninth Causes of Action, at least as they pertain to the areas at issue in the preliminary injunction motion, must be dismissed. Plaintiffs, as the party invoking federal jurisdiction, bear the burden of proving jurisdictional elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Given the factual record before the court, this motion is not limited to a facial challenge to the sufficiency of the Complaint. A Rule 12(b)(1) motion can challenge the substance of a complaint's jurisdictional allegations in spite of its formal sufficiency by relying on affidavits or any other evidence properly before the court. New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir. 1995). It then becomes necessary for the party opposing the motion to present affidavit or other evidence necessary to satisfy its burden of establishing that the court has jurisdiction. Id. The court is then permitted to consider and weigh the sufficiency of these materials in the context of a Rule 12 motion:
Recreationists did not formally move on the Seventh Cause of Action because it was not clear, at the time the motion to dismiss was filed, that the Seventh Cause of Action was going to be relied upon as a basis for injunctive relief. However, Recreationists discussed why the Seventh Cause of Action should be dismissed in its final memorandum, and in arguing for injunctive relief and against dismissal, Plaintiffs have addressed this issue. Thus, court will consider the merits of the Seventh Cause of Action.
When, as here, a party attacks the factual basis for subject matter jurisdiction, the court may not presume the truthfulness of the factual allegations in the complaint, but may consider evidence to resolve disputed jurisdictional facts. Reference to evidence outside the pleadings does not convert the motion to dismiss into a motion for summary judgment in such circumstances.SK Finance SA v. La Plata County, 126 F.3d 1272, 1275 (10th Cir. 1997) (citations omitted).
Judicial review of agency activities is typically limited to "final agency action for which there is no other adequate remedy in a court . . . ." 5 U.S.C. § 704. Plaintiffs' claims are all brought under section 706(1) of the Administrative Procedure Act, which permits a court to compel agency action unlawfully withheld or unreasonably delayed. This type of failure-to-act claim is a very narrow exception to the APA's limitation of judicial review of final agency action. The exception has been narrowly construed to prevent judicial intrusion into the day-to- day workings of agencies. This type of injunctive relief sought by Plaintiffs is essentially the equivalent of mandamus. Mt. Emmons Mining Co. v. Babbitt, 117 F.3d 1167, 1170 (10th Cir. 1997); R.T. Vanderbilt Co. v. Babbitt, 113 F.3d 1061, 1065 (9th Cir. 1997). Mandamus relief is proper "only where the functions constitute clearly defined, peremptory ministerial duties of a government official owed to a complainant." Ortiz v. United States, 661 F.2d 826, 831 (10th Cir. 1981). Mandamus is an appropriate remedy only if the plaintiff is owed a "clear nondiscretionary duty." Marquez-Ramos v. Reno, 69 F.3d 477, 478-79 (10th Cir. 1995) (stating that "[t]he importance of the term `nondiscretionary' cannot be overstated-the judiciary cannot infringe on decision-making left to the Executive branch's prerogative."). Claims that agency action is insufficient or inadequate do not fall within the scope of permissible judicial review under APA § 706(1).
Indeed, in assessing whether agency action is unreasonably delayed and thus reviewable under 706(1), "courts have permitted jurisdiction under the limited exception to the finality doctrine [provided by 5 U.S.C. § 706(1)] only where there is a genuine failure to act." Ecology Center, Inc. v. United States Forest Serv., 192 F.3d 922, 926 (9th Cir. 1999). Thus, Plaintiffs cannot "evade the finality requirement with complaints about the sufficiency of agency action dressed up as an agency's failure to act." Id. (quotations and citations omitted). A justiciable "failure to act" claim requires "agency recalcitrance . . . in the face of a clear statutory duty or . . . of such a magnitude that it amounts to an abdication of statutory responsibility . . ." ONRC Action v. BLM, 150 F.3d 1132, 1137 (9th Cir. 1998).
The Tenth Circuit has stated that, under section 706(1), "the distinction between agency action `unlawfully withheld' and `unreasonably delayed' turns on whether Congress imposed a date-certain deadline on agency action." Forrest Guardians v. Babbitt, 174 F.3d 1178, 1190 (10th Cir. 1999). In the instant case, there are no "date-certain deadlines" by which BLM's ORV management must operate. Thus, Plaintiffs' claims represent a 706(1) challenge of "unreasonably delayed" agency action, although the court's conclusion in this case would remain the same under either label.
Judicial deference to agency discretion is particularly appropriate when decisions are based on the agency's special expertise and professional judgment, and "[w]hen specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." Marsh v. Oregon Natural Resources Council, Inc., 490 U.S. 360, 378 (1989). Similarly, in matters involving "primarily issues of fact," the analysis of which "requires a high level of technical expertise," courts are to defer to "the informed discretion of the responsible federal agencies." Id. at 376-77 (citations and quotations omitted).
A. Wilderness Study Areas
Plaintiffs argue that the BLM has violated Section 603 of the Federal Land Policy Management Act ("FLPMA"), 43 U.S.C. § 1782(c), by permitting ORVs to impair the wilderness qualities of the following wilderness study areas ("WSAs"): Parunuweap WSA, Moquith Mountain WSA, Behind the Rocks WSA, and Sids Mountain WSA. They also argue that BLM has violated 43 C.F.R. § 1610.5-3 by failing to consistently implement the terms of its land use management plans regarding existing WSAs and the Factory Butte Special Monitoring Area. Finally, they argue that BLM has failed to comply with the Executive Orders and regulations governing the management of ORVs on BLM lands by permitting ORV use on broad tracts of BLM lands without an application of the minimization criteria contained in these documents.
Plaintiffs argue that they are likely to succeed on the merits and point to the fact that, since they filed this lawsuit, the BLM has voluntarily closed some WSAs initially considered by Plaintiffs in this preliminary injunction request. Plaintiffs presented evidence from Dr. Howard Wilshire, an expert on the impacts of ORVs on desert ecosystems, on the significant resource damage, including soil erosion and compaction, and destruction of vegetation.
BLM and Recreationists, on the other hand, argue that the court lacks jurisdiction over Plaintiffs' claims. They claim that Plaintiffs' claims are not failure to act claims, but rather, claims about the sufficiency of the BLM's actions.
Although the BLM has consistently argued that Plaintiffs' claims are really complaints about the sufficiency of the agency action dressed up as an agency's failure to act, and as such, are not justiciable under APA § 706(1), it did not join in Recreationists' motion to dismiss. The BLM's arguments are taken from its briefs opposing Plaintiffs' motion for a preliminary injunction and Plaintiffs' post-hearing briefing. The court has focused on BLM's arguments but notes that Recreationists' arguments are substantially the same.
1. FLPMA's Non-Impairment Standard
FLPMA established a fifteen year review process, beginning in 1976, for the BLM to review and recommend lands for wilderness designation. See 43 U.S.C. § 1782(a). In 1980, the BLM identified approximately 2.5 million acres of its lands in Utah as wilderness study areas. Utah v. Babbitt, 137 F.3d 1193, 1198 (10th Cir. 1998). In 1991, the Secretary of Interior recommended that approximately 1.9 million acres of those lands become designated wilderness, and President Bush forwarded that recommendation to Congress. Id. at 1199. Congress, however, has not acted on BLM's recommendation, and thus the 3.2 million acres of WSAs remain under consideration for entry into the National Wilderness Preservation System, and are managed pursuant to Section 603(c) of FLPMA, 43 U.S.C. § 1782(c).
Congress has provided a standard for management of WSAs:
During the period of review of such areas [WSAs] and until Congress has determined otherwise, the Secretary shall continue to manage such lands according to his authority under this Act and other applicable law in a manner so as not to impair the suitability of such area for preservation as wilderness.43 U.S.C. § 1782(c). To implement the nonimpairment standard, the BLM promulgated the Interim Management Policy and Guidelines for Lands Under Wilderness Review, known as the "IMP." (The most current version of the IMP is included in Plaintiffs' Exhibit Vol. I, at Tab 8.) The BLM contends that, while it is under a mandatory statutory duty to manage lands "in a manner so as not to impair the suitability of such acres for preservation as wilderness," what this means and how it is to be carried out is far from clear, as demonstrated by BLM's subsequent development of a 49-page IMP to interpret the meaning of Congress' mandate. IMP at 3 ("To determine what is permissible under the general `nonimpairment' standard, we must examine what Congress meant by impairment of an area's suitability for preservation of wilderness."). Under the IMP, the BLM has a responsibility to ensure that "the existing wilderness values of all WSAs . . . are not degraded so far, compared with the area's values for other purposes, as to significantly constrain the Congress' prerogative to either designate a WSA as wilderness or release it for other uses." IMP at 4. Under the IMP, motor vehicle travel "may only be allowed on existing ways and within `open' areas that were designated prior to the passage of FLPMA . . ." Id. at 15-16. Open areas can also be designated in sand dunes. Id. at 47. Other than in permitted open areas, however, "cross-country vehicle use off boundary roads and existing ways" is prohibited. Id.
While the IMP's policy is to "take all actions necessary to ensure full compliance with the IMP," id. at 8, it also recognizes the reality that unauthorized incursions in the WSAs cannot always be prevented. For example, the agency is to make "every effort . . . to obtain voluntary compliance," but also to take "additional appropriate action" in the event voluntary efforts fail." Id. at 8. The IMP's policy is that BLM state directors "assure a level of monitoring and surveillance of each WSA adequate to prevent, detect, and mitigate unauthorized activities" and "attempt to immediately reclaim the impacts caused by any authorized action . . . ." Id. Responsible recreational use of WSAs is to be encouraged through promotion of "leave no Trace" and "Treat Lightly" programs. Id. at 45. Allowable recreational uses are also to be monitored to ensure that impairment of "wilderness suitability" does not occur (e.g., from "erosion caused by increased vehicle travel within a WSA"); "if necessary" to prevent such impairment, the BLM will "adjust the time, location, or quantity of use or prohibit that use in the impacted area." Id. What the IMP demonstrates is that, while there is a "nonimpairment" mandate, there are management options and levels of response that can be taken to deal with impairment problems, and the choice of response that should be made if impairment occurs is not "clear and certain . . . ministerial and so plainly prescribed as to be free from doubt."
The BLM points out that it is well aware that ORV-caused damage is resulting from cross-country travel in these WSAs, but argues that it does not "permit" such travel, and it is addressing the complicated issue of controlling the problems posed by ORV use. It also argues that "closure" of existing ways is neither required by the IMP, nor is it necessarily the solution to the existing problems. In sum, the BLM argues that Plaintiffs are not asserting a genuine failure- to-act claim, but complaints about the sufficiency of the agency action.
After listening to the testimony during a two-day hearing on Plaintiffs' motion for a temporary restraining order and during a four-day preliminary injunction hearing, and carefully reviewing the briefs filed by the parties, along with the affidavits and other exhibits, the court concludes that Plaintiffs have not demonstrated that BLM has abdicated its statutory responsibility. Plaintiffs' claim appears to be a complaint about the sufficiency of BLM's action, rather than a genuine failure to act. While Plaintiffs have presented significant evidence about the alleged impairment that is occurring in the WSAs due to ORV use, BLM has also presented significant evidence about the steps it is and has been taking to prevent such impairment.
It is clear that the decision to close or leave open an existing way in a WSA is far from clear and certain, ministerial, and so plainly prescribed as to be free from doubt. Whether or not "impairment" is occurring constitutes precisely the type of administrative determination that is entitled to considerable weight. See ONRC Action, 150 F.3d at 1139. It is also clear that BLM is aware of the impairment caused by ORV use, and it is, at least, attempting to perform a complex balancing of many factors that bear on this issue. For example, BLM faces constraints on personnel and other resources, and it must consider the size and number of WSAs and other areas that must be managed, the increasing recreational pressure from ORV users, the assertion of RS 2477 rights by the state and counties, the practicality, feasibility, and effectiveness of various restrictions, and other factors. The representatives from various BLM Field Offices testified about the management efforts in their respective areas, and some discussed efforts at coordinating and collaborating with the state, counties, and local ORV user groups to gain support for cooperation and volunteer actions that would protect WSA values and develop user ethics that respect the land, natural resource and wilderness values. In addition, the BLM must consider that a closure of such routes could result in a backlash by some users who would purposely violate the closure and might significantly reduce or eliminate opportunities for cooperative volunteer projects such as rehabilitation, signing, barricading, and monitoring. These are risks that must be considered, by those with expertise and professional judgment, in arriving at the most effective solution to the problems.
Even if the court were to agree with Plaintiffs that the pace and nature of BLM's actions were inadequate, Plaintiffs still would not have satisfied their onerous burden of demonstrating that the BLM has failed to act. It appears that BLM has taken various actions, many of them recently-perhaps due, at least in part, to this lawsuit-but, steps have been taken nonetheless. Even Plaintiffs stated during their closing arguments, that the BLM has taken "half steps." Thus, this claim must be dismissed.
2. Land Use Management Plans
Under 43 C.F.R. § 1610.5-3(a), "[a]ll future management authorizations and actions . . . shall conform to the approved [management] plan. Plaintiffs claim that the BLM has failed to comply with its Management Framework Plans, Resource Management Plans, and the pertinent amendments to those documents. They contend that the BLM has failed to protect the four WSAs at issue here from impairment, as required by the Resource Management Plans governing them, and that BLM has failed to implement the protections to which it committed in the planning documents for the Henry Mountains Resource Area and the San Rafael Resource Areas.
Plaintiffs' first argument is essentially the same as the FLPMA § 603 claim discussed above, and thus, it will not be discussed again here. Regarding their claim that the BLM has failed to implement portions of the RMPs for the San Rafael and Henry Mountain Resource Areas, Plaintiffs' claim is, again, a claim regarding the sufficiency of BLM's actions, rather than a failure to carry out a clear, ministerial duty.
The regulation, 43 C.F.R. § 1610.5-3(a) states that "[a]ll future resource management authorizations and actions . . . and subsequent more detailed or specific planning, shall conform to the approved plan." This language appears, on its face, to be limited only to affirmative projects either approved or undertaken after the RMP is in place; it does not require that further planning activities contemplated by the plan actually take place. Plaintiffs have not identified some site-specific action taken by the BLM that does not conform to the plan; rather, they claim that further planning activities specified in the RMPs did not occur. This claim, then, does not amount to a genuine 706(1) claim. See e.g., Ecology Center v. U.S. Forest Service, 192 F.3d at 926; ONRC Action, 150 F.3d at 1139 (explicitly rejecting 43 C.F.R. § 1610.5 as a possible basis for APA § 706(1) jurisdiction). Even the consistency requirement of § 302(a) of FLPMA ("The Secretary shall manage the public lands . . . in accordance with the land use plans") does not assist Plaintiffs here. While the BLM's actions have not been carried out to the letter, there has not been a complete failure to perform a legally required duty that would trigger a review under § 706(1).
3. Executive Orders and Regulations
Executive Order 11644 provides that ORV use shall only be permitted on public lands in accordance with the following criteria:
(a) Areas and trails shall be located to minimize damage to soil, watershed, vegetation, air, or other resources of the public lands, and to prevent impairment of wilderness suitability.
(b) Areas and trails shall be located to minimize harassment of wildlife or significant disruption of wildlife habitats. Special attention will be given to protect endangered or threatened species and their habitats.
(c) Areas and trails shall be located to minimize conflicts between off-road vehicle use and other existing or proposed recreational uses of the same or neighboring public lands, and to ensure the compatibility of such uses with existing conditions in populated areas, taking into account noise and other factors.37 Fed. Reg. 2877 (1972). The BLM's ORV designation criteria regulations incorporate the terms of Executive Order 11644 almost verbatim. See 43 C.F.R. § 8341.2
Executive Order 11644 was amended by Executive Order 11989, which gave the BLM the authority to close areas of the public lands that were suffering "considerable adverse affects" from ORV use. 42 Fed. Reg. 26959 (1977).
BLM argues that Plaintiffs are attempting to challenge the Resource Management Plans themselves, which are final decisions challengeable only under APA § 704, which Plaintiffs have never pleaded as a basis for jurisdiction, and they have not exhausted their administrative remedies in any event. In addition, BLM argues that Plaintiffs' argument, that illegal creation of trails in areas classified as "limited" in RMPs is a per se violation of the minimization criteria, is not correct. The BLM argues that the simple fact that illegal use is being made of some BLM lands does not amount to the affirmative creation of trails by BLM in violation of the minimization criteria, and Plaintiffs present no legal basis for imputing such illegal acts to the agency.
In addition, while Plaintiffs also argue that areas in the Parunuweap and Moquith Mountain WSAs are classified as "open" to cross-country ORV use, with user-creation of trails taking place, BLM contends that, to the extent that this is a claim of inadequate law enforcement, such a claim is not reviewable under the APA. Heckler v. Chaney, 470 U.S. 821, 832 (1985). BLM further argues and the court agrees that, to the extent Plaintiffs are contending that "open" designations for these areas violate the IMP, they are wrong. The only open areas on the Moquith WSA are the dunes areas, which have been the subject of extensive analysis and management planning by BLM to comply with the IMP standard, which permits open areas in dunes. While certain areas of the Parunuweap WSA fall within "open" land designations under the Vermillion Management Framework Plan, testimony demonstrated that this Plan was developed and implemented before the Parunuweap WSA was designated and that management of the WSA itself has been under the IMP and limited to existing ways.
Accordingly, this claim cannot survives under § 706(1), and it must be dismissed.
B. Section 202 Areas
Plaintiffs seek injunctive relief pertaining to specific areas not currently designated as WSAs, but which were identified by the BLM in its 1999 Wilderness Inventory process as having wilderness qualities. The BLM is currently reviewing these areas under its planning authority to determine whether to give them WSA status. Referred to as" § 202 areas," they include: the land adjacent to the Parunuweap, Behind the Rocks, and Indian Creek WSAs, as well as areas around Factory Butte, North Caineville Reef, and Wildhorse Mesa.
Prior to the preliminary injunction hearing, Plaintiffs sought to dismiss their Ninth Cause of Action without prejudice, as discussed below. BLM and Recreationists opposed that motion, arguing that it should be dismissed with prejudice. The court notified the parties that, in any event, the Ninth Cause of Action would be dismissed, and whether the dismissal would be with or without prejudice would be determined at a later date. In any event, that claim would not be at issue during the preliminary injunction hearing. The Ninth Cause of Action was premised on 41 C.F.R. § 1506.1(a) and targeted those areas now being considered by the BLM for possible designation as Wilderness Study Areas under FLPMA. These areas included lands adjacent to the Parunuweap, Behind the Rocks, and Indian Creek WSAs, as well as areas around Factory Butte, North Caineville Reef, and Wildhorse Mesa. With the dismissal of the Ninth Cause of Action, the question of whether these areas must be managed to protect wilderness values under the non-impairment standard of FLPMA Section 603, 43 U.S.C. § 1782(c) was no longer at issue in this case.
During the week prior to the preliminary injunction hearing, Plaintiffs filed a Supplemental Memorandum Addressing Effect of Dismissal of Ninth Cause of Action. In that memorandum, Plaintiffs explained that it was still entitled to injunctive relief closing significant portions of these areas to further ORV use because they had alleged three claims that were not premised on the non-impairment mandate or the fact that these areas were being considered for WSA status. At the preliminary injunction hearing, on August 28, 2000, the BLM and Recreationists objected to Plaintiffs' attempt to keep alive issues pertaining to the § 202 areas, because they had believed that, with the dismissal of the Ninth Cause of Action, these areas would not be at issue during the preliminary injunction hearing because no other theories pertaining to these areas had been raised in Plaintiffs' briefs. Recreationists filed a motion in limine to exclude these theories. The court, however, denied the motion and allowed Plaintiffs to proceed with their theories pertaining to the § 202 Areas. The court stated that, after further briefing from Plaintiffs after the hearing, the other parties would have an opportunity to respond to Plaintiffs' briefing and that a subsequent evidentiary hearing would be held, if necessary. Accordingly, after the hearing, Plaintiffs submitted further briefing on its Seventh Cause of Action-the Supplemental NEPA Claim-and BLM, Recreationists, and the State then filed responsive briefs.
First, regarding the Factory Butte, North Caineville Reef, and Wildhorse Mesa areas, Plaintiffs contend that BLM has violated 43 C.F.R. § 1610.5-3(a) by failing to conform its actions to the terms of the Henry Mountains ORV Plan, the Henry Mountains Resource Area Management Framework Plan, and the San Rafael Resource Management Plan. They claim that the BLM has failed to perform the monitoring required by the Henry Mountains plans and has failed to designate trails in "limited" areas in the San Rafael Resource Area, with the result that these areas are de facto open to cross-country ORV use.
Second, Plaintiffs argue that, in all of the non-WSA areas at issue, they have presented evidence that new trails are being created on the ground in violation of the public participation provisions of the Executive Orders and the BLM regulations. Thus, they are entitled to injunctive relief in light of the new trails that are being established on these areas.
Finally, Plaintiffs argue that, with regard to these areas, the BLM has violated 40 C.F.R. § 1502.9(c)(1) by failing to supplement existing NEPA analysis and documents to reflect current ORV user numbers, ORV use patterns, damaging ORV impacts, and the creation of new user- crated ORV trails. NEPA requires such supplementation if "there are new circumstances or information relevant to the environmental concerns and bearing on the proposed actions or its impacts." 40 C.F.R. § 1502.9(c)(1).
Plaintiffs argue that the land use plans encompassing the non-WSA areas at issue (i.e., the Vermillion Management Framework Plan, the Henry Mountain Management Framework Plan and Off-Road Vehicle Implementation Plan, and the San Juan, San Rafael, and Grand Resource Management Plans) all presuppose two things: (1) that ORV user figures would remain static, and (2) that additional NEPA planning, along with other implementation measures (i.e., monitoring, signing, trail maps, etc.) were prerequisites to comply with the terms of the plans themselves. Plaintiffs claim that they have presented evidence that, although neither of these suppositions have occurred, the BLM has failed to engage in additional NEPA analysis. They claim that ORV user figures have skyrocketed in the past ten years, when the most recent NEPA land use plans at issue were completed, and yet the Kanab, Monticello, Price, Moab, and Henry Mountains Field Station offices have not updated their NEPA analysis.
Again, BLM and Recreationists argue that an agency decision to amend or revise land management plans or to perform supplemental NEPA analysis is not a clearly defined, ministerial duties, but rather, requires considerable discretion and judgment, as does the timing and pace of such process once it is undertaken.
Plaintiffs' claims regarding the § 202 areas suffer the same deficiency as their claims regarding the WSAs. The regulations upon which Plaintiffs rely reek of discretion. This court cannot conclude, after listening to the testimony and considering the parties' post-hearing briefs regarding Plaintiffs' Seventh Cause of Action-particularly the Declaration of Douglas M. Koza, the Deputy State Director, Natural Resources for the Utah State BLM, that the BLM has abdicated a mandatory, nondiscretionary duty.
Mr. Koza has provided a detailed account of the BLM's extensive planning workload, including the actions that have been taken in the recent past, current actions, and actions that are planned for the future. In addition, the BLM's planning efforts are tied to complex budget and other resource variables that require setting priorities for major planning efforts on both a national and state level. This means that the agency is unable to address every perceived need at once and that priorities must be set based on management judgment as to how such needs can be best met within the context of all the other demands for funding and resources that are inherent in the management of 23 million acres of public lands in Utah. The BLM has recognized that ORV use on public lands generally has increased over the past few years and is taking steps to deal with the implications and effects.
Plaintiffs claim that BLM has failed to take the required "hard look" at the question of whether increased ORV activity amounts to new information or new circumstances that warrant supplemental NEPA analysis, and claim that the inescapable conclusion must be that the new circumstances unanticipated by existing NEPA documents, skyrocketing ORV use, and environmental impacts require supplemental NEPA. However, that conclusion is not justified on the evidence before the court. The court cannot state that the agency "has a clear duty to act under NEPA or FLPMA." See ONRC Action, 150 F.3d at 1137. Indeed, the decision whether to prepare a supplemental environmental impact statement is the kind of factual question that implicates agency technical expertise and requires courts to "defer to the informed discretion of the responsible federal agencies." Marsh, 490 U.S. at 377 (quotation and citation omitted).
This court "is hesitant to upset an agency's priorities by ordering it to expedite one specific action and thus give it precedence over others." Sierra Club v. Thomas, 828 F.2d 783, 797 (D.C. Cir. 1987) (finding, in 706(1) case, that "a court is generally ill-suited to review the order in which an agency conducts its business.") While the court might agree with Plaintiffs that too little is done too slowly, the court cannot conclude that BLM has abdicated its statutory responsibility for management.
III. MOTION TO DISMISS NINTH CAUSE OF ACTION
Plaintiffs have moved to dismiss their Ninth Cause of Action without prejudice. Recreationists, in the motion to dismiss discussed above, argued that the Ninth Cause of Action should be dismissed with prejudice. BLM originally moved to dismiss the Ninth Cause of Action with prejudice, but subsequently stated that, "at the time defendants filed their motion, it appeared that dismissal was warranted based only on the allegations of the pleadings and at this point, the issue appears more complicated. Thus, with the issue effectively gone from this case, in any event, and without waiving the merits of their motion to dismiss with prejudice, defendants advise the Court that they do not oppose the dismissal, without prejudice, of plaintiffs' Ninth Cause of Action." United States' Response to Plaintiffs' Supplemental Briefing Re: Seventh Cause of Action at 2. Because the BLM does not oppose it, the court grants Plaintiffs' motion to dismiss the Ninth Cause of Action without prejudice.
IV. CONCLUSION
For the foregoing reasons, and good cause appearing, IT IS HEREBY ORDERED that
(1) Recreationists' Motion to Dismiss (docket # 123) is GRANTED, and Plaintiffs' First, Fifth, Six, and Seventh claims, to the extent they pertain to the WSAs and § 202 Areas addressed during the preliminary injunction hearing, are DISMISSED with prejudice. The Ninth Cause of Action, however, is not dismissed based upon this motion.
(2) Plaintiffs' Motion for Dismissal of Plaintiffs' Ninth Cause of Action (docket # 111) is GRANTED, and the Ninth Cause of Action in the Second Amended Complaint is DISMISSED without prejudice;
(3) Plaintiffs' Motion for a Preliminary Injunction (docket # 53) is DENIED AS MOOT;
(4) BLMs' Motion for Dismissal of Plaintiffs' Ninth Cause of Action with Prejudice (docket # 117) is MOOT, as BLM has now stated that it does not oppose dismissal without prejudice.