Case 3:09-cv-08011-PGR Document 121 Filed 02/25/11 Page 1 ...michellawyers.com/wp-content/uploads/2010/11/178728_1NRAs-Reply-in... · 2 3 4 5 6 7 Case 3:09-cv-08011-PGR Document 121

Case 3:09-cv-08011-PGR Document 121 Filed 02/25/11 Page 1 of 24

C. D. Michel- Cal. B.N. 144258 (pro hac vice)

2 MICHEL & ASSOCIATES, P.C. 180 E. Ocean Boulevard, Suite No. 200

3 Long Beach, CA 90802 Telephone: 562-216-4444

4 FacsImile: 562-216-4445 Email: [email protected]

5 David T. Hardy - S.B.N. 4288 8987 E Tanque Verde, No. 309

6 Tucson, AZ 85749-9399 Telephone: 520-749-0241

7 FacsImile: 520-749-0088 Email: [email protected]

8 Attorneys for Defendant-Intervenor

9 National Rifle Association

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

PRESCOTT DIVISION

CENTER FOR BIOLOGICAL 14 DIVERSITY

15 Plaintiff, v.

16 U.S. BUREAU OF LAND

17 MANAGEMENT' RON WENKER, Acting Director oiu.s. Bureau of Land

] 8 Management; JAMES KENNA, BLM Arizona State Director; KEN SALAZAR,

19 Secretary ofInterior, and U.S. FISH AND WILDLIFE SERVICE

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21 Defendants, and

NA TIONAL RIFLE ASSOCIATION, 22 Defendant-Intervenor.

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II/

Case No.: 3:09-cv-08011-PCT-PGR

DEFENDANT -INTERVENOR NATIONAL RIFLE ASSOCIATION'S REPL Y IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY ADJUDICATION

Intervenor's Reply ISO Motion for Partial Summary Adjudication

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TABLE OF CONTENTS PAG

INTRODUCTION .................................................................................................. I

ARGUMENT .......................................................................................................... 1

A. Plaintiff's New Arguments Are Without Merit ........................................ 1

l. The Adoption of the RMP's Will Not Result in an Increase

in Hunting Requiring NEPA Analysis Regarding the Alleged

Relationship ........ ........................ '" .................................................. .

i. Plaintiff Incorrectly Interprets the Administrative

Record .................................................................................. ..

a. ASRMP060310 ........................................................... .

b. ASRMP060950 ........................................................... .

c. ASRMP062925 .......................................................... ..

ii. Plaintiff Cannot Establish the Required Causal

Connection .................. ......................................................... ..

2. Plaintiff's New Cumulative Impacts Argument Fails

Because the Adoption of the RMPs Does Not Cause an

Additional Impact Regarding the Presence of Lead

Ammunition in the Planning Area ................................................ ..

B. The Opposition Fails to Show that Plaintiff's Condor-Related

NEPA Claims Are Not a Disguised (and Time-Barred) Challenge

to the Terms of the 1996 "Reintroduction" of Condors to the

Planning Area ............................................................................................ 1

l. Plaintiff Fails to Allege How "New Scientific

Information" Has "Bearing on the Proposed

Action" Establishing a Violation of 40 C.F.R.

§ 1502.9 ............................................................................................ 11


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TABLE OF CONTENTS (CONT.)

2. 40 C.F.R. § lS02.9's "New Information" Provision

Does Not Apply Because the Major Federal

PAG

Action at Issue in this Case Is Complete ....................... , .............. 11

3. Plaintiff's "New Scientific Information" Is

Not New ........................................................................................... 1

C. Plaintiff Has Not Shown Prejudice Justifying Additional

Agency Action that Is Sufficient to Negate Intervenor's

Harmless Error Argument ....................................................................... 1

1. Plaintiff's Reliance on Methow and Gifford

Is Misplaced .................................................................................... 1

2. Intervenor's Harmless Error Argument Requires

No Outside Evidence ...................................................................... 1

D. NEP A Does Not Require an EIS Specifically Discuss "Flyspeck"

Arguments .................................................................................................. 1

CONCLUSION ..................................................................................................... 1

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TABLE OF AUTHORITIES PAGE S

CASES

Celote4f77Is~' 3q7t(l~86) ................................................................................................ . Cf Anglers of the Au Sable v. Us. Forest Servo

565 F: SuPP. 2d 812 (E.D. Mich. 2008) ................................................................. ..

C[ San LiliS & Delta-Mendota Water Auth. v. Salazar, 668 F. Supp. 2d 1026 (E.D. Cal. 2009) .................................................................. 13

8 Dep 't 0t~~rU.S.l75~u(~0~~)~~~.' ............................................. .............................................. . 9 Friend'} olSe. 's Future V. Morrison,

10 15'3 F.3d 1059 (9th Cir. 1998) ................................................................................ 1

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Gifford Pinchot Task Force v. Us. Fish & Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) .................................................................... 14,15,1

Gros Ventre Tribe v. United States, 469 F .3d 801 (9th Cir. 2006) .................................................................................. 13

'Ilio'Ulaokalani Coal. V. Rums/eld 464 F.3d 1083 (9th Cir. 20(6) ................................................................................ 1

: ~ Lagun4fF~3db5{~ {9~h ciY.·f9f4f.':..~!..~~.~.~:~:: ................................................................ 1

17 Nat 'I. ~t211 F~3'l496 %~hdCir~1?~7{~~: .. ~~:~ ........................................................................ 2

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A1arsh v. Or. Natural Res. Council, 490 U.S. 360 (J989) ................................................................................... 11,12,13

20 Metro !glfUs.· f661i9t~~~~~:.~~~~~~~~~~~f!!..: ........................................................... 7,

21 Miccosukee Tribe o/Indians of Fla. V. United States, 22 430 F. Supp. 2d 1328 (S.D. Fla. 2006) ................................................................... 13

23 Norton v. S. Utah Wilderness Alliance,

542 U.S. 55 (2004) ..................................................................................... 11, 12, 1

24 Protect Lake Pleasant, LLC V. Conner, No. 07-0454-PHX-RCB,

25 2010 WL 5638735, at *20 (D. Ariz. July 30,2010) .............................................. 13

26 Quechan Indian Tribe V. Us. Dep 't of the Interior,

547 F. Supp. 2d 1033, (D. Az. 2008) ..................................................................... ..

27 Robertson V. Methow Valley Citizens Council, 490 U.S. 332 (1989) ............................................................................................... 15

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III



TABLE OF AUTHORITIES (CONT.)

2 PAGE(S

3 CASES (CONT.)

4 5 Sierra Club v. Us. Fish & Wildlife Serv.,

235 F. Supp. 2d 1109 (D. Or. 2002) ................................................................... 9,10

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7 Warm ~'?1.2ff61 J(9~hFcir~eI9·8g).~~~.~~: ................................. ...................................... 14

8 STATUTES

9 28 U.S.C. § 2401 ............................................................................................................... 13

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5 U.S.C. § 706 ................................................................................................................... 15

REGULATIONS

40 C.F.R. § 1502.9 ..................................................................................... 10, 11, 12, 13, 14

43 C.F.R. §§ 1610.5-5, 1610.5-6 ....................................................................................... 12

43 C.F.R. §§ 46.120 ........................................................................................................... 14

50 C.F.R. § 17.84 ............................................................................................................... 16

RULE

20 LRCiv 56.1(a) ...................................................................................................................... 3

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IV



I. INTRODUCTION

2 Plaintiff Center for Biological Diversity's ("Plaintiff') Opposition/Reply (the

3 "Opposition" or "Opp.")! raises several new National Environmental Policy Act

4 ("NEPA") arguments not found in Plaintiff's Motion for Summary Judgment ("Plaintiff's

5 MSJ" or "PI.'s MSJ,,)2 regarding Plaintiff's California condor-related NEPA claims.

6 Though the Opposition makes a half-hearted attempt to reiterate Plaintiff's original

7 condor-related NEPA argument (i.e., that the adoption of the Resource Management

8 Plans ("RMPs") can cause lead-based ammunition use), the Opposition actually focuses

9 on a new NEP A argument: that the RMPs increase or enhance hunting.

10 Plaintiff's old and new condor-related NEPA claims are based on erroneous

11 interpretations of legal precedent and the Administrative Record. Additionally, the

12 Opposition fails to rebut the statute oflimitations and harmless error defenses raised in

13 Intervenor's Motion. Accordingly, Intervenor hereby submits this Reply in support ofth

14 Motion and requests the Court find Plaintiff has no viable NEPA claim regarding the

15 supposed relationship between the adoption of the RMPs, hunters' use of lead-based

16 ammunition, and California condors released in Arizona. Upon making such a finding,

17 the Court will have ample grounds to both grant the Motion and deny the condor-related

18 allegations in Plaintiff's MSJ.

19 II.

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ARGUMENT

A. Plaintiff's New Arguments Are Without Merit

21 Aside from the fact that Plaintiff's new arguments are based in large part on

22 (alleged) material facts not found in Plaintiff's Statement of Material Facts,3 Plaintiff's

23 two new arguments are substantively meritless.

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! Center for Biological Diversity'S Combined Reply in Support of Summary Judgment, Opposition to Crossmotions for Summary JuCigment, and Response to Briefs by Am~ci Curea (Docket Document 118).

Center for Biological Diversity s Notice of Motion and Motion for Summary Judgm~nt (Docket Document 98).

Plaintiff's Statement of Material Facts in Support of Motion for Summary Judgment (Docket Document 99). For example, the CIted text associated with notes 6 an 8 herein is presented by Plaintiff without any evidentiary citation. Parties at the Summary Judgment stage are required to produce evidence of a genuine issue of material

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1. The Adoption of the RMP's Will Not Result in an Increase in

Hunting Requiring NEP A Analysis Regarding the Alleged

Relationship Between Condor Health Issues and the Use of

Lead-Based Ammunition

Prior to Intervenor filing its Motion, Plaintiff's condor-related NEP A claim was

grounded in an allegation that "the effects of BLM allowing the use o/lead ammunition in

the project area are both significant and immediately foreseeable, satisfying the

definition of 'significant effects' that BLM must discuss [in the Environment Impact

Statement ("ErS")]," (PI.'s MSJ 26-27 (italics added)l That is, Plaintiff argued that:

NEP A requires BLM to include a discussion of the recognized impacts the Plan will likely have on condors with regards to the use of'/ead ammunition in the /!roject area. The data is neither unambiguous nor lacking,z and BLM s omission of any environmental analysis on the impact or lead ammunition on condors in the Arizona Strip is a fatal flaw of the FEIS rendering it inadequate for NEP A purposes.

14 (Pl.'s MSJ 32 (italics added).) So, Plaintiff originally relied on the (incorrect) theory that

15 adoption of the RMPs would cause hunting with lead-based ammunition to be allowed.

16 Now, however, the Opposition's new condor-related arguments no longer focus on

17 supporting the argument that the adoption of the RMPs caused the use of lead

18 ammunition in the Planning Area.5 Instead, Plaintiff presents a new argument: that

19 adoption of the RMPs will facilitate and increase hunting in the Planning Area, which

20 Plaintiff claims "will increase the risk oflead toxicity to condors." (Opp. 15.) The

21 Opposition states:

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fact; conclusory allegations without factual support are insufficient. See Nat 'I, Steel Corp. v. Golden Eagle Ins. Co., 121 F.3d 496,502 (9th Cir. 1997) (citing, among others, Celote~ Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).

Intervenor uses filing pagination regardmg any document filed in this action and cited herein.

5 Indeed, the Opposition completely jails to respond to the statement in the Motion that "Plaintiff cannot provide a single case that supports its argument that adoption of a management plan can 'cause' an alleged effect that exists regardless of that aaoption (assuming arguendo the effect exists at all)." (Mot. Partial Summ. Adj .I0pp. to PI.' S MSJ 21 (the "MotIOn" or "Mot.").) Certainly, if Plamtiff was aware of any autliority supporting the argument mentioned in the preceding sentence, Plaintiff would have cited such authority in the Opposition.

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r a ]ccording to the FEIS, hunting is a recreational activity contemplated in the Arizona Strip and expressly enabled and enhanced by the adopted RMPs. ASRMP06031 O. ("VisItors using the Planning Area for a variety of recreation activities including ... hunting. .. [Mlanagement of visitor activities is recognized as potentially havmg profOund environmental effects on rArizona Strip [ands]. Tne BLM and NPS assessed these possible effects, along with potential user conflicts. Planners propose an appropriate recreation management framework ... ").

(Opp. 11-12 (alterations in original).)

The FEIS also concludes that some of the proposed changes in those plans (i.e., the same changes that warrant the c0rWpletion of the NEPA process) will have adverse environmental impacts. ) These include increasing access for Off-Road Vehicles ("ORVs") and hunters, which will, according to BLM{ "facilitate recreational activitift'j [thatl may lead to injury or mortality of wi dlife, which include hunting." ASRMP060950. See also AZ Strip FO ROD, ASRMP062925 (recreation opportunities ... such as hunting . .. will be maintained/enhanced') (emphasIs added).

(Opp. 11-12 (alterations in original).)

Based on the foregoing, Plaintiff now states its causation argument as follows. rT]he RMPs affect all aspects of the use of the Arizona Strip by the public, including hunting, even if only indirectly (by affr~tmg use patterns or opening or closing areas to access, for example). TllIS alone creates a sufficiently causal relationship between the adoption of the RMPs and the impacts of hunting with lead ammunition to warrant discussion in the EIS, but the relationshIp is even greater, as the RMPs clearly facilitate increased access and enhanced opportunities to hunt in the Arizona Strip. ASRMP060950. These new and increased impacts to condors warrant a full discussion in the EIS.

(Opp. 15.) In summary, Plaintiff now argues that "[b ]ecause the RMPs contemplate and

even enhance hunting on the Arizona Strip, and the RMPs are unquestionably major

federal actions requiring NEP A analyses, the effects of hunting with lead ammunition

must be analyzed." (Opp. 13.)

6 Intervenor includes this sentence to give context to other cited material; Intervenor need not rebut content of the sentence because it is unsupported either in the Oppos~ion or Statement of Material Facts. See LRCiv 56.I(a).

Note 6 (on page 12) in the Opposition states: "Although this quote pertains to Alternative A, Alternative E, the proposed action, lists the overall impacts from travel managiment to be 'similar to those described under Alternative A.' ASRMP060973."

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Case 3:09-cv-08011-PGR Document 121 Filed 02/25111 Page 9 of 24

i. Plaintiff Incorrectly Interprets the Administrative Record

2 Plaintiff s new arguments are based on incorrect interpretations of excerpts from

3 the Administrative Record. To appreciate this, a close look at the material cited is

4 necessary.

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a. ASRMP060310

The Opposition argues that a portion of ASRMP06031 0, attached hereto as

Exhibit" I ," stands for the proposition that "hunting is a recreational activity

contemplated in the Arizona Strip and expressly enabled and enhanced by the adopted

RMPs." (Opp. 11.) To support this claim, Plaintiff puts forth a heavily altered version

of a portion of the text of ASRMP0603I O. But the unedited text (quoted below, with the

portions Plaintiff omitted in bold), simply does not stand for what Plaintiff argues it does.

Visitors use the Planning Area for a variety of recreation activities including exploring, sightseeing, hiking, backpacking, camping,_hunting, off-highway Vehicle (OHV) use, and mountam bike riding. Given growtb projections for communities in the southwestern U.S. and the mcreased use of public lands for recreational pursuits, ineffective management of VIsitor activities is recognized as potentially having profound environmental effects on Monument and Arizona Strip FO Land. The BLM and NPS assessed these possible effects, along with potential user conflicts. Planners propose an appropriate recreation management framework that ensures protection of Monument and Arizona Strip FO resources.

The unedited text speaks for itself. It does not in any way state that the adoption of the

RMPs "expressly enables" or "enhances" hunting.

b. ASRMP060950

The Opposition, quoting ASRMP060950 (attached hereto as Exhibit "2"), makes

the following statement.

The FEIS also concludes that some of the proposed changes in those plans (i.e., the same changes that warrant the completion of the NEPA process) will have adverse environmental impacts. These include increasing access for Off-Road Vehicles ("ORVs") and hunters, which will, according to BLM

f "facilitate recreational activities [that] may lead to injury or mortality

of wi dlife, which include hunting."

27 (Opp. 12.) Aside from the fact that the original material does not include the phrase

28 "which include hunting[,]" the cited material simply does not indicate the RMPs include

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a "proposed change" in the fonn of an increase in hunting. That is, Plaintiff contends the

RMPs include a proposed change allowing more access for hunting, meaning that

(alleged) proposed change should have been evaluated pursuant to NEP A.

The problem with this argument is that the reference to "increased access" upon

which Plaintiff relies (discussed in ASRMP060950) has nothing to do with proposed

changes that may require NEP A consideration.

The following excerpt is taken from ASRMP060950, where it is found under the

heading "Alternative A: No Action" and the subheading "Impacts from Travel

Management[. ]"

Wildlife may be irijured or killed by collisions with vehicles traveling upon the existing transportation system .... The transportation system also provides increased access;, resulting in an increase in the level of human activity, noise, dust, and aisturbance. Routes facilitate recreational activities which may lead to injury or mortality of wildlife, provide a corridor for invasive exotics, fragment habitat, and inhibit breeding activities.

The section of ASRMP060950 quoted above is referring to the transportation

system (e.g., roads) existing in the Planning Area prior to the RMPs being created. The

phrase "increased access" refers to an increase, as compared to the Planning Area's

natural condition (i.e., no roads). Indeed, the fact that the phrase "increased access" is

made in the description of the "no action" alternative9 shows that phrase has nothing to

do with a proposed change.

Plaintiff also cites to ASRMP060950 as evidence that "the RMPs clearly facilitate

increased access and enhanced opportunities to hunt in the Arizona Strip." (Opp. 15.)

But ASRMP060950 says nothing about hunting, let alone an increase or enhancement

thereof. Both of Plaintiffs arguments purportedly based on ASRMP060950 fail due to

Plaintiff s misinterpretation of the phrase "increased access."

9 As noted in footnote 7 above, Plaintiff indicates that, as to alternative E (the proposed action), the "overall impacts from travel management to be 'similar to tbose aescribed under Alternative A[, i.e., the no action alternativel." (Opp. 12 n.6.) Therefore, the impacts from travel management would have been extant regardless of whether the no action alternative or alternative E was adopted, and thus the impacts are not "proposed changes" requiring NEP A analysis.

5 Intervenor's Reply ISO Motion for Partial Summary Adjudication


c. ASRMP062925

2 Finally, Plaintiff attempts to argue that ASRMP062925, attached hereto as Exhibit

3 "3," is evidence that increased access for hunters is a proposed change found in the

4 RMPs. (Opp. 18.) As part of that argument, Plaintiff provides this misleading quotation

5 of a portion of the Arizona Strip Field Office Record of Decision (ASRMP062925):

6 "(recreation opportunities ... such as hunting . .. will be maintained/enhanced')

7 (emphasis added)." (Opp. 18 (alterations in original).) When the entire unedited version

8 of the quoted text is reviewed and put in context, however, it reveals a completely

9 different picture from the one Plaintiff presents.

10 TABLE 2.14: RECREATION AND VISITOR

1] SERVICES/INTERPRETATION AND ENVIRONMENTAL

] 2 EDUCATION

13 I. RECREATION MANAGEMENT

14 A. DESIRED FUTURE CONDITIONS

15 1. General Recreation DFCs

16 In Backways and Specialized TMAs,[IOj recreation opportunities associated with somewhat remote settings, such as exploring backcountry roads and

] 7 trails, vehicle camping, hunting, sightseeing, recreation aviation, and picnicking would be maintained/enhanced as well as mountain biking

18 opportumties on existing routes, provided they would be compatible with tile protection and enhancement of sensitive resource values and Monument

19 objects, where appropriate.

20 (ASRMP062924-25 (strikethrough in original).)

21 Reviewing the entirety of the relevant text reveals that the text is not referring to

22 a proposed action that may increase hunting (as Plaintiff argues). Instead, under

23 alternative E (the proposed alternative) one desiredfuture condition associated with

24 alternative E is that "recreation opportunities associated with somewhat remote settings

25 ... " will be "maintained/enhanced[.]" Though it should go without saying, a desired

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28 10 TMA is the acronym for Travel Management Areas, defined in the glossary of the EIS at ASRMP062281.

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future condition is precatory, It not a proposed change, and certainly not a change that

2 has impacts requiring NEP A consideration.

3 The text of ASRMP062925 itself proves Plaintiff is relying on a boldly incorrect

4 interpretation thereof. That interpretation should be ignored by this Court.

5 ii. Plaintiff Cannot Establish the Required Causal

6 Connection

7 The new causal chain alleged in the Opposition (i.e., enhanced hunting

8 opportunities in Backways and Specialized TMAs will lead to more hunters hunting and

9 more spent lead being bioavailable to condors) is too tenuous to meet the proximate

10 cause-type causation standard adopted by the Supreme Court. See Metro. Edison Co. v.

II People Against Nuclear Energy, 460 U.S. 766, 773-74 (1983). Aside from the

12 increased hunting argument, Plaintiff also states "[a]s discussed above, the RMPs affect

13 all aspects of the use of the Arizona Strip by the public, including hunting, even if only

14 indirectly (by affecting use patterns or opening or closing areas to access, for

15 example)." (Opp. 15.)

16 Without a more specific internal cross reference, it is unclear what section

17 Plaintiff is referring to in using the phrase "[a]s discussed above." Regardless, it is clear

18 that the concepts of "use patterns" and "opening and closing areas to access" are not

19 discussed elsewhere in the Opposition, making Plaintiffs reference thereto conjecture.

20 And Plaintiffs scope of causation is so broad (i.e., "the RMPs affect all aspects of the

21 use of the Arizona Strip ... [creating] a sufficiently causal relationship between the

22 adoption of the RMPs and the impacts of hunting with lead ammunition to warrant

23 discussion in the EIS") that, pursuant to Plaintiffs logic, anything that does or could

24 happen in the Planning Area creates a "sufficient causal relationship."

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11 Cj Anglers of the Au Sable v. Us. Forest Serv., 565 F. Supp. 2d 812,839 (E.D. Mich. 2008) ("The language on which the plaintiffs rely [i.e., a desired future condition 1 is explIcItly aspirational, the future condition ... oemg 'desired,' not mandatea.").

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This argument fails to show an impact proximately caused by the adoption of the

2 RMPs. Therefore, Plaintiff s general "all aspects of use" causation argument fails to

3 meet the proximate cause requirement stated by the Supreme Court.

4 In sum, Plaintiffs reply fails to make a meritorious causation argument.

5 Assertions without any legitimate support (either because Plaintiff s factual assertions

6 were made without citation or because the cited material was irrelevant to the assertion

7 made) cannot stand. Regardless ofPlaintiWs motives in attempting to replace one

8 unsupportable causation argument with another, the fact remains that Plaintiff cannot

9 make a plausible causal connection between what Plaintiff recognizes as the relevant

10 major federal action (i.e., the adoption of the RMPs)12 and the potential presence of

11 carrion harvested with lead-based ammunition.

12 The Court should deny Plaintiff s condor-related claims.

13 2. Plaintiff's New Cumulative Impacts Argument Fails Because the

14 Adoption of the RMPs Does Not Cause an Additional Impact

15 Regarding the Presence of Lead Ammunition in the Planning

16 Area

17 40 C.F.R. § 1508.7 states:

18 "Cumulative impact" is the impact on the environment which results from the incremental impact of the action when added to other past, present, and

19 reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts

20 can result from mdividually minor but collectively significant actions taking place over a period of time.

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The action here is the adoption of the RMPs. (Opp. 11.) Thus, BLM was required

to address the incremental impact of the adoption of the RMPs when added to "other past

present, and reasonably foreseeable future actions." The Opposition's cumulative

impacts argument states: "even if, arguendo, the management of hunting is outside of the

scope of the RMPs, it does not excuse BLM from considering the effects of the RMPs in

conjunction with state actions regarding the use oflead ammunition." (Opp. 18.)

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Ifit was true that the adoption of the RMPs created a new (i.e., cumulative) impact

when added to other actions occurring separately from that adoption, the foregoing

statement could potentially be correct. Plaintiff, however, is attempting to foist the

alleged impact of the state's regulation of hunting (and the concomitant alleged lead

threat) on to the adoption of the RMPs. Specifically, the Opposition states "the effects of

lead toxicity on condors fit precisely within the definition of cumulative effects[]" (Opp.

19) without explaining how the adoption a/the RMPs impacts lead toxicity. 13

The adoption of the RMPs, as addressed in Section ILA.l herein, does not cause

any lead threat, nor does it potentially create an increase in hunting so as to indirectly

create an increase of the alleged lead threat. Plaintiff's cumulative impact argument

ignores (as does the Opposition generally) the fact that there is no causal relationship (let

alone proximate causation) herein between an action (e.g., the adoption of the RMPs) and

a potential effect (the alleged lead threat) requiring analysis of that potential effect in the

relevant EIS. See Metro. Edison, 460 U.S. at 773-74; Dep 't o/Tranps. v. Pub. Citizen,

541 U.S. 752, 769-70 (2004).

In Public Citizen, the Su}?reme Court held that the cumulative impact analysis requirement neither enlarges the scope of analysis under NEP A nor eliminates the requirement that the impact be causally related to the proposed action. 541 U.S. at 769-70. Thus, the cumulative impacts analysis IS subject to the same "rule of reason" that limits the scope of analysis to "the usefulness of any new potential information to [the action agency's] decisionmaking process."

Quechan Indian Tribe v. Us. Dep't a/the Interior, 547 F. Supp. 2d 1033,1045 (D. Ariz.

2008) (citing and discussing Pub. Citizen, 541 U.S. at 767, 769-70).

Contrary to Plaintiff's mischaracterization, Sierra Club v. Us. Fish & Wildlife

Serv., 235 F. Supp. 2d 1109 (D. Or. 2002) does not present a "comparable situation" to

this case. In fact, it actually provides an excellent basis to disprove Plaintiff's cumulative

13 For example, the Opposition states "in conjunction with the impacts of the proposed plan r presumably Pfaintiff is referring to the RMPs], the effects oflead toxicity could be SIgnificantly harmful to the condor, tliereby requiring BLM to include in its EIS discussion Impacts to the condor .... " (Opp.20.) The foregoing, just like the rest of Plaintiff's cumulative impacts argument, fails to explain what it IS about the adoption of the RMPs that "adds" to the impact of concern.

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impact claim. The Opposition includes an excerpt of Sierra Club discussing a federal

2 action (an elk predation study) resulting in a "relatively small" number of cougar deaths,

3 which when "combined" with the "relatively small" number of cougars killed by hunters

4 or due to damage complaints, drastically increased the potential cougar mortality rate in

5 the impacted area. (Opp. 21 (citation omitted).) The Sierra Club court held there was

6 "no cumulative impact analysis addressing total annual mortality rates." Sierra Club, 235

7 F. Supp. 2d at 1132.

8 Here, unlike Sierra Club, the federal action (i.e., the adoption of the RMPs)

9 resulted in no additional impact beyond the state's "action" of managing hunting. That

lOis, the adoption of the RMPs is the analogical equivalent to if the elk predation study in

II Sierra Club was limited to field observation and did not require any cougar deaths.

12 Because the adoption of the RMPs does not have an "indirect impact" that becomes a

13 cumulative impact when added to the state of Arizona's management of hunting,

14 Plaintiff s cumulative impact claim must fail.

IS

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B. The Opposition Fails to Show that Plaintiff's Condor-Related NEPA

Claims Are Not a Disguised (and Time-Barred) Challenge to the Terms

of the 1996" Reintroduction" of Condors to the Planning Area

The Opposition argues

Even if, arguendo, NRA's assertion that the new resource management plans maintain the status quo in regards to BLM's policy towards hunting, BLM was still obligated to consider the new scientIfic information in existence now, but nw at the time of the adoption of the old resource management plans. 40 C.F.R. Part IS02.9(c).

(Opp. 16.) Thus, Plaintiff alleges that it is not challenging the terms of the 1996

reintroduction (which plainly contemplated and accepted the theory that lead-based

ammunition would be used in the Planning area) 15 but that it is actually challenging

14 Plaintiffs failure to provide an explanation as to what "old resource management plans" it is referring to, in and of itself, provides a basis for the Court to disregard this assertion, as Plaintiff does not provide evidence that the alleged "new evidence" was not considered with regard to the "old resource management plans."

15 See R0075601. 10



BLM's supposed failure to consider "new scientific information" during the creation of

2 the EIS. (Opp. 16.)

3 Plaintiff s attempt to characterize its challenge of the terms of the 1996

4 reintroduction fails for several distinct reasons.

5 1. Plaintiff Fails to Allege How "New Scientific Information" Has

6 "Bearing on the Proposed Action" Establishing a Violation of 40

7 C.F.R. § 1502.9

8 The main error in Plaintiffs argument is revealed in Plaintiffs citation to Norton

9 v. S. Utah Wilderness Alliance, 542 U.S. 55, 72 (2004): "According to the Supreme

10 Court, 'where "[t]here are significant new circumstances or information relevant to

11 environmental concerns and bearing on the proposed action or its impacts,"

12 supplemental analysis is required.'" (Opp. 16 (italics added).) Here, even if Plaintiff is

13 correct in stating there is new scientific information regarding the alleged relationship

14 between condor health issues and legal use of lead-based ammunition (which Intervenor

15 denies), that infonnation does not have any "bearing on" the proposed action (i.e., the

16 adoption of the RMP) nor any impacts created thereby, as the proposed action (just like

17 the no action alternative) does not include any change related to hunting with lead-based

18 ammunition.

19 2. 40 C.F.R. § 1502.9's "New Information" Provision Does Not

20 Apply Because the Major Federal Action at Issue in this Case Is

21 Complete

22 Additionally, 40 C.F.R. § 1502.9 states the standard for requiring a supplement to

23 an EIS, not the standard for determining the scope of an EIS, which Plaintiff claims is the

24 issue herein. (Opp. 11.)16 40 C.F.R § 1502.9 is potentially relevant "only ifthere

25 remains major Federal actio[n] to occur." See Nortoll, 542 U.S. at 73 {citing Marsh

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27

28

16 The Opposition is inconsistent in that it first states that it is a "logical error" in this case (concerning the scope of an EIS) to consider authorities discussing the proper "threshold for preparing an EIS[,]" but then relies heavily on Norton regarding the threshold for preparing a Supplemental EIS. (Opp. 13, 16-17.)

11

Intervenor's Reply ISO l\'lotion for Partial Summary Adjudication


v. Or. Natural Res. Council, 490 U.S. 360,374 (19g9) (internal quotation marks

2 omitted)).

3 Plaintiff admits the adoption of the RMPs is a major fedcral action. (Opp. 11.)

4 Because that major federal adion was complete upon approval, "there is no ongoing

5 "major federal action' that could require supplementation [pursuant to 40 C.F.R. §

6 1502.9]." See Nor/on, 542 U.S. at 73.17 Based on the foregoing, Plaintiff is incorrect in

7 asscliing that pursuant to 40 C.F.R § 1502.9 the EfS was f~lUIty because it did not include

8 "information in existence now, but not at the time of the adoption of the old resource

9 management plans" (Opp. 16.) Indeed, it is not relevant what information was available

10 when the (unspecified) "old resource management plans" were adopted.

1 I 3. Plaintiff's "New Scientific Information" Is Not New

12 There is no "new scientific infonnation" regarding the threat lead-based

13 ammunition use allegedly creates vis-a.-vis condors. (Opp. 17.) The supposed lead-based

14 ammunition threat to condors was discussed as part of the 1996 reintroduction. (See

15 R007600-01.) So, even ifit were true that "various newer studies ... clearly show a

16 causal relationship bctween hunting with lead ammunition and condor lead poisoning

17 particularly in the Arizona Strip[.]"IS that would not constitute "significant new

] 8 infonnation." At best, it would be information confirming prior research regarding a

19 theory that, correctly or not, NPS (working in conjunction with the BLM) has accepted as

20 con"ect since at least 1996. (R007590, R007600-01, ASRMP056210; see also Reply in

21 Support of Federal Defs.' Combined Cross-Mot. for Summ. J. and Opp. to Pl.'s Mot. for

22 Summ. 1. [Docket Document 119] at 7 n.l.)

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24

25

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17 The Opposition cites to dicta in Norton that if a land management plan was amended or revised to address an increase in ORV use, additional NEPA analysis would be required. (Opp. 17 (citation omitted).) The Opposition does not explain why it cites this material. Ifit was to bolster an argument that 40 C.F.R § 1502.9 is the ap,l?roQriate standard for determining what is conslaered in the "additional NEP A analysis referred t in Norton, that would be incongruent with what Norton actually states (it refers to 43 ~.F.R. §§ 1610.5-5, 1610.5-6). Norton, 542 U.S. at 73. I Defendant intervenor disputes the any study clearly shows the causal connection alleged.

12



Further, even if the Court were to consider the "newer studies" to be "new

2 j nfonnation" indicating an increase in condor deathslinjuries related to lead fragment

3 ingestion (whether occurring in Arizona or not), Plaintiff still has not met its burden to

4 show that that increase "will affec[t] the quality of the human environment in a

5 significant manner or to a significant extent not already considered[.]" I 9 See Protect

6 Lake Pleasant, LLC v. Conner, No. 07-0454-PHX-RCB, 2010 WL 5638735, at *20 (D.

7 Ariz. July 30, 2010) (citing Marsh, 490 U.S. at 374) (alterations in Protect Lake

8 Pleasant).

9 If any information regarding the alleged lead-ammunition thrcat was ever new and

10 could have justified supplemental review under 40 C.F.R. § 1502.9(c), it was when the

11 lead-threat theory was actually new, i.e., more than ten years ago. As the "the general

12 six-year statute of limitations for civil actions brought against the United States, see 28

13 U.S.c. § 2401(a), applies to actions for judicial review brought pursuant to the ... "

14 APA,20 Plaintiff is time-barred from bringing a claim alleging a violation of 40 C.F.R.

15 § 1502.9(c).

16 And in any event, the potential need to prepare a supplement to an EIS can only

17 occur if the major federal action at issue discussed in an EIS is incomplete, such is not th

18 case here. Plaintiff's only attempt to rebut Intervenor's time-bar argument is based in 40

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19 As stated on page 24 of the Motion: "Prior to the [19961 reintroduction, a draft EA ["Environmental Assessment"] and FONSI ["Finding of No Significant Impact"] were created pursuant to NEP A ... and the Service did not mince words about how reintroduction would not affect sport hunting, a 'current and future' use that 'should not be restricted due to the designation of the nonessential experimental population of California condors.'" Plaintiff likely disputes that finding" but suing BLM to perform additional (and duplicative) NEPA analysis is notjustifiea. Cf San Lius & DeltaMendota Water Auth. v. Salazar, 668 F. Supp. 2d 1026, 1036 n.3 (E.D. Cal. 2009) (quoting Miccosukee Tribe of Indians of FTa. v. United States, 430 F. Supp. 2d 1328, 1335 (S.D. Fla. 2006) ("To expect or require [an agency] to submit its own EIS in spite of the fact that it was not the action agency and that [another a&ency] had already issued one is nonsensical and an utter waste of government resources. ').

20 Gras Ventre Tribe v. United States, 469 F.3d 801,814 (9th Cif. 2006) (citation omitted).

13


Case 3:09-cv-08011-PGR Document 121 Filed 02125/11 Page 19 of 24

C.P.R. § 1502.9 (and related authority),21 which Intervenor has shown above to be

2 completely inapplicable. Accordingly, the Court should find Plaintiff s condor-related

3 claims time-barred.

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c. Plaintiff Has Not Shown Prejudice Justifying Additional Agency

Action that Is Sufficient to Negate Intervenor's Harmless Error

Argument

1. Plaintiff's Reliance on Methow and Gifford Is Misplaced

Plaintiff claims that Intervenor "provides absolutely no authority for th[ e]

extremely novel argument" "that if no action to address an alleged environmental impact

is possible, it is harmless error if that impact is not discussed in the PElS." (Opp. 17.)

Plaintiff is incorrect. Restating the Motion's entire harmless error argument is obviously

unnecessary, but the Motion's citation and quotation of the following cases (both of

which are noticeably absent from the Opposition) is sufficient to rebut Plaintiffs

hyperbolic assertion.

Laguna Greenbelt, Inc. v. u.s. Dep't a/Trans., 42 P.3d 517, 527 (9th Cir. 1994) (holding an EIS' failure to accurately disclose the effects that would result if a proposed toll road was created was not an error requiring reversal). "[E]ven where there is a violation ofNEPA's procedural requirements, relief will not be granted if the decision-maker was otherwise fully informed as to the environmental consequences and NEP A's goals were met. See, e.g., Warm SRrings Dam Task Force v. Gribble, 621 P.2d 1017,1023 (9th Cir. 1980). Id

21 As part of the Opposition's argument based on 40 C.P.R. §1502.9, Plaintiff selectively ~uotes portions of 43 c'P.R. § 46.120( c), apparently in an attempt to bolster an (unstated argument anchored in dicta from Norton (see note 17 supra). As has been the case wit other selective quotations in the Opposition, the true import of the cited source, when reviewed in context, is at odds with Plaintiffs interpretation. (Omitted text is in bold).

§ 46.120 Using existing environmental analyses prepared pursuant to NEPA and the Council on Environmental Quality regulations. r subsections a, b, and d are irrelevant and thus omitted] (c) An existing environmental analysis I1repared pursuant to NEP A and the Council on Environmental Quality regulations may be used in its entirety if the Responsible Official determines, with appropriate supporting documentation, that it adequately assesses the envIronmental effects of the proposed action and reasonable alternatives. The supporting record must include an evaluation of whether new circumstances, new information or changes in the action or its impacts not previously analyzed may result in significantly different environmental effects.

14



(Mot. 26.)

2 Plaintiff's attempt to rebut Intervenor's harmless error argument relies on exactly

3 two cases. First, Plaintiff cites to Robertson v. Methow Valley Citizens Council,

4 490 U.S. 332, 352 (1989) to support the following statement: "considering that NEPA is

5 first and foremost an informational and disclosure statute, requiring absolute certainty in

6 the ability to address environmental harms at the outset is nonsensical and runs contrary

7 to all NEPAjurisprudence." (Opp. 17.) Intervenor admits it does not understand the

8 foregoing statement, but notes that the portion of Methow cited makes no comment about

9 "all NEP A jurisprudence" or what runs contrary thereto. Further, even presuming NEP A

lOis "first and foremost an informational and disclosure statute[,]" that has nothing to do

11 with a harmless error argument. Indeed, the word "error" in the phrase "harmless error"

12 presupposes that some kind of violation occurred. If the fact that a violation occurred

13 was determinative, the harmless error rule would not exist.

14 Plaintiff also cites Gifford Pinchot Task Force v. Us. Fish & Wildlife Service, 378

15 F.3d 1059 (9th Cir. 2004) for the proposition that "agency error is harmless only 'when a

16 mistake of the administrative body is one that clearly had no bearing on the procedure

17 used or the substance of decision reached.''' (Opp. 17-18 (emphasis in Gifford).)

18 Plaintiff, however, apparently attempts to rely solely on its quotation from Gifford, and

19 fails to provide any evidence of how the non-consideration of the alleged lead-based

20 ammunition threat had any bearing on "the procedure used or the substance of' the EIS.

21 The rule of prejudicial/harmless error applies and allows the Court to hold the alleged

22 failure to consider the alleged lead threat harmless pursuant to 5 U.S.C. § 706.

23 2. Intervenor's Harmless Error Argument Requires No Outside

24 Evidence

25 The Opposition also argues (without any legal authority cited) that the harmless

26 error argument "raises new issues and allegations that are well outside of the Center's

27 claims ... for which an insufficient factual record exists .... " (Opp. 18.) Plaintiff

28



attempts to cite three examples to support this argument. Each of those examples,

2 however, deals with a question of law requiring no new evidence.

3 First, Plaintiff states Intervenor "alleges that no action to redress the harm caused

4 by lead poisoning is 'possible' save for removing condors from the Planning Area. (Opp.

5 18 (citation omitted).) This is a purely legal argument (which does not include the word

6 "possible" as Plaintiff indicates); regulating hunting as to allowable ammunition would

7 run head-on into the terms of the 1996 reintroduction. The Federal Register cl early states

8 sport hunting was a "current and future" use that "should not be restricted due to the

9 designation of the nonessential experimental popUlation of California condors."

10 (R007596 (italics added).)

11 Second, even if Plaintiff had not misstated the Motion's suggestion that rehashing

12 the alleged lead threat could "perhaps reduc[ e] the time and manpower available to guide

13 the reintroduction effort[,]" that contention is a legal one, relying on facts already in the

14 record. If an agency's error "is not harmless, the' preferred course' is a remand to the

15 agency for the necessary explanation." See Gifford, 378 F.3d at 1071 n.7 (citation

16 omitted). Here, as stated in the Motion, "[t]he portions of the Administrative Record

17 cited in PI. 's MSJ make it abundantly clear that the Bureau, the Service, the Department,

18 and the public are all aware of the alleged lead threat." (Mot. 32.) Further, the BLM is

19 actively defending its position herein that the alleged lead-threat is outside the scope of

20 the RMPs even though it has taken the (disputed) position that "hunting with lead

21 ammunition poses a risk of lead poisoning to condors [citing ASRMP056192-93,

22 056210] .... ',22 This argument can surely be addressed without admitting new evidence.

23 Third, Plaintiff argues that an "insufficient factual record exists" regarding

24 Intervenor's argument "that regulating the type of ammunition used by hunters is a

25 'restriction' on hunting." (Opp. 18 (citation omitted).) This argument fails because it

26 has only to do with the interpretation of 50 C.F.R. § 17.84(j) and related portions of the

27

28 22 See Memorandum in Support of Federal Defendants' Combined Cross-Motion

for Summary Judgment and OppOSItion to Plaintiffs Motion for Summary Judgment (Docket Document 107) at 24.

16



Federal Register, and requires no further facts. 23 Because Plaintiff provides no legal

2 authority and examples that are inapposite to Plaintiffs assertion, Plaintiff fails to

3 overcome Intervenor's harmless error contentions.

4 D. NEPA Does Not Require an EIS Specifically Discuss "Flyspeck"

5 Arguments

6 Assuming arguendo that enhancing recreational access generally would have a

7 perceptible impact on the amount of lead-based ammunition available to condors in the

8 Planning Area (which Intervenor denies), such impact would be so minor as to be a

9 "flyspeck" insufficient to support Plaintiff s condor-related NEP A allegations. See

10 Friends 0/ Se. 's Future v. Morrison, 153 F .3d 1059, 1063 (9th Cir. 1998) (citation

11 omitted). In reviewing an EIS, a court must "determine whether it contain[s] 'a

12 reasonably thorough discussion of the significant aspects of the probable environmental

13 consequences. '" [d. (citation omitted). The Court of Appeals for the Ninth Circuit has

14 referred to the abovementioned standard of review as "a rule of reason" that is "is not

15 materially different from arbitrary and capricious review." See 'llio'Ulaokalani Coal. v.

16 Rums/eld, 464 F.3d 1083, 1094 (9th Cir. 2006) (citation omitted). The Opposition

17 provides nothing (other than conjecture) that the alleged hunting enhancement would

18 lead to a "significant aspect[] of the probable environmental consequences." Given the

19 vast scope of the RMPs, there can be no rational doubt the alleged enhancement does

20 not meet the foregoing standard.

21 II I

22 III

23 III

24 I I I

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26

27

28

23 For reasons unknown, Plaintiff argues that if an ammunition type limitation is a restriction, then, "under th[atllogic, the BLM's management of OR V routes would also be a "restriction['that'] coulcfimpede hunting .... " (Opp. 18 n.1I.) IfBLM was managing ORV routes/or the pUlpose o/protecting condors, the two would both be improper restriction pursuant to tIie terms of the introduction. What Plaintiff puts forth, however, is an irrelevant comparison between "apples and oranges."



III. CONCLUSION

2 For all of the reasons stated herein, the Motion should be granted and Pl.'s MSJ

3 should be denied as to its condor-related claims.

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Dated: February 25, 2011

18

MICHEL & ASSOCIATES, P.C.

/s/ C.D. Michel C.D. Michel Attorneys lor Defendant-Intervenor the National Rifle Assodation


Case 3:09-cv-08011-PGR Document 121-1 Filed 02/25/11 Page 1 of 2

EXHIBIT "1"


Arizona Strip Proposed PlanJFEIS Executive Summary

Issue 4: How will livestock grazing he addressed, particularly on the Monuments?

A number of people identified livestock grazing as an issue during scoping. Comments ranged from eliminating all livestock grazing in the Monuments to supporting all grazing activities III the Planning Area. Others supported elTminating livestock grazing only in envIronmentally sensitive areas. Possible options to modify current grazmg activIties are presented in thIs Proposed PlanfFEIS.

hsue 5: Haw will recreation activities be managed?

Visitors use the Planning Area for a variety of recreation activities including exploring, sightseeing, hiking, backpacking, camping, hunting, off-highway vehicle (OHV) use, and mountain bike riding. Given growth projections for communities in the southwestern U.S. and the increased use of public lands for recreational pursUIts, ineffective management of visitor activities is recognized as potentially having profound environmental effects on Monument and Arizona Strip FO lands. The BLM and NPS assessed these possible effects, along with potential user conflicts. Planners propose an appropriate recreation management framework that ensures protection of Monument and Arizona Strip FO resources. They also propose targeting several recreation-tourIsm strategies to produce beneficial outcomes tied to visitor experiences and activities that take place in a variety of natural and community settings

Management concern 1: Haw will degraded ecosystems be restored?

Restoration of degraded ecosystems is an important management concern. Disruption of the natural fire regIme has caused the degradatlOn of ecosystems within the Planning Area (eg., grasslands are being overrun by shrubs, ponderosa pine and pinyon-juniper forests are unnaturally dense, and Mojave desert, riparian, and other sensitive areas have been invaded by non-native, noxious plants). The selective use of techniques including, but not limited to, mechanized thmning, grazing controls, revegetation with native species, eradication of noxious plants, and use of fire to achieve more natural ecosystem processes can help recover degraded ecosystems. The range of options is detailed in this Proposed PlanlFEIS.

Management concern 2: Haw will the human factors in the Planning Area he considered?

While the focus of management plans tends to be on the area's natural and cultural resources, the human or social factors must also be considered. While remote and largely uninhabited, the Planning Area surrounds a number of small communities largely dependent upon public lands for deriving certain economic, personal, family, community, and environmental benefits. Other small and mid-sized communities and one urban area located just outside the Planning Area's boundaries are also closely connected to the public lands. Rapid population growth in the region will also affect the natural and cultural resources and associated uses on public lands. Public safety is also a concern. The rapId growth, as well as the issues and concerns of the local mhabitants, are taken into consideration in this Proposed PlanfFEIS.

ES-4

ASRMP060310


EXHIBIT "2"


Anzona Strip Proposed Plan/FEIS Chapter 4. Environmental Impacts

• Wildl ife management through habitat restoration and vegetative treatment actions would be based on managing for various states and stages of vegetation based on site potential as described for ecological zone in the Vegetation and Fire and Fuels Man~ment sectIon of Chapter 2.

• Parashant has no streams and no fishery resources.

Impacts to Fish and Wildlife

Impacts to fish and wildlife resources would result from actions proposed under the fonowing resource management programs

• Transportaion and Access • Wilderness Characteristics (Parashant only) • VegetatIOn and Fire and Fuels Management • Air, Water, and Soil • F ish and Wildl ife • Special Status Species • Mineral Resources (Arizona Strip FO only) • Livestock Grazing • Recreation • Lands and Realty

Alternative A: No Action

Impacts from Travel Management

Wildlife may be injured or killed by collIsions with vehicles traveling upon the existing transportction system Impacts from collisions typically affect individuals, though populations may also be adversely affected if the species is rare or collisions are frequent. Birds, reptiles, and small mammals are among the species most commonly hit by vehicles. Generally, collisions with wildlife are infrequent in the Planning Area, with the exception of rabbit kills during periods when tht)' are locally abundant. Because of the reduced traffic volume, impacts from collisions on roads open only for administrative purposes are considered rare. The transportction system also provides increased access, resulting in an increase in the level of human activity, noise, dust, and disturbance. Routes facilitate recreational actIvities, which may lead to injury or mortality of wildlife, provide a corridor for invasive exotics, fragment habitat, and inhibit breeding activities. Routes also serve as travel corridors for some species and act as effective firebreaks.

Minor, short-term indirect impacts could result from disturbance, noise, and dust from traffic on the designated transportation system Forage vigor and overall habitat suitability could be reduced from dust settling on vegetation adjacent to roads, reducing the overall habitat suitability for wildltfe. Under thIS alternative, 7,095 miles afroutes would be open to md:orized use,

4-101

ASRMP060950


EXHIBIT "3"


Arizona Strip Ficld OtTIce Record of Decision

MODIFICATIONS AND CLARIFICATIONS

ModificatIOns and clarifications were made to the Approved RlYfP based on the review and resolution of the protest letters, as well as from internal review by the BLM, The agreed upon clarificatIOns or modifications to the decisions are provided below

MODIFICA TlONS

While responding to protests, the BLM noted errors in GIS acreage calculations and categorization of stipulations in the FEIS Table 2,13, page 2-164, The Fluid Mineral Leasing Categories map in the FEIS (Map 2,9) accurately depicted the location of areas with special terms and conditions and seasonal restrictions or no surface occupancy or disturbance (Categories 2 and 3), but the GIS acreage calculations for these two categories in FEIS Table 2,13 did not correspond, In the FEIS Table 2,13, desert tortoise ACECs were categorized as areas WIth special tenns and conditions (Category 2) rather than no surface occupancy or other surface disturbance (Category 3). In addition, the Virgin River Scenic Withdrawal Area should have been no surface occupancy or other surface disturbance (Category 3) instead of special terms and conditions (Category 2). The corrected acreage calculations for these categories can be found In the Minerals decisions in the attached Approved RMP Correcting these acreage calculation errors resulted in 51,385 additional acres categorized a<; no surface occupancy or disturbance (Category 3) and a corresponding acreage reduction for areas with special tenns and conditions and seasonal restrictions (Category 2; see Minerals decisions in attached Approved RMP),

Two errors for Locatable Minerals in FEIS Table 2.13 were also corrected in the Minerals decisions in the attached Approved RMP, A portion of the Grand Canyon Game Preserve was miscategonzed as re-conveyed Stock Raising Homestead Act lands rather than withdrawn lands when dIgitized into GIS, and a Bureau of Reclamation withdrawal was missed when tabulating the acreage figures. Correcting these errors increases the acreage withdrawn from mineral entry by 17,871 acres to 118,743 acres and decreases the acres open with a plan of operation to 182,699 acres,

In addition, the reference to mountain bikes on "existing routes" (FEIS, p, 2-172) has been changed in the Approved RMP to assure that the Recreation and Visitor Services desired future conditions properly aligns with the Travel Management direction, The desired future condition now reads (changes shown in strikeout):

In Backways and Specialized TMAs, recreation opportunities associated with somewhat remote settings, such as exploring backcountry roads and trails, vehicle camping, hunting, sightseeing, mountain biking, recreation aviation, and picnicking will be maintained/enhanced as '.;'ell as mountain bil(lFlg opportuRities on eKisting routes, provided they will be compatIble with the protection and enhancement of sensitive resource values, where appropriate,

II

ASRMP062925


CERTIFICATE OF SERVICE

2 I hereby certify that on February 25, 2011, I electronically transmitted the document DEFENDANT-INTERVENOR NATIONAL RIFLE ASSOCIATION'S

3 REPLY IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY ADJUDICATION to the Clerk's Office using the CM/ECF System for filing and

4 transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

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Adam F. Keats John T. Buse Center for Biological Diversity 351 California Street, Suite 600 San Francisco, CA 94104 Tel.: (415) 436-9683 akeats(@blologicaldiversity.org jbusc(cl}biologlcaldivcrsitv.org

Richard Glen Patrick US Attorney's Office 2 Renaissance Sq 40 N. Central Ave., Suite 1200 Phoenix, AZ 85004-4408 Tel.: (602) 514-7500 richard.patrick((l)usdoj.gov

Rickey Doyle Turner, Jr. Environment and Natural Resources Division Wildlife & Marine Resources Section U.S. Department of Justice Ben Franklin Section P.O. Box 7369 Washington, DC 20044-7369 ~el No.: (202) 305-9229 nckcy.turncr(a)usdol.gov

Anna Mar~o Seidman [email protected] Douglas Scott Burdin dburain(Q),safariclub.org Safari Cfub International 501 2nd St NE Washington, DC 20002

Seth M. Barsky US DOJ, Env. & Nat. Res. Div. 601 DStNW Washington, DC 20004 scth.barsky((iitJsdoj. gOY

Dated: February 25,2011

Luther L. Hajek US Dept. Of Justice ENRD P.O. Box 663 Ben Franklin Station Washington, DC 20044-0663 Tel.: (202) 305-0492 [email protected]

John Buse Center for Biological Diversity 5656 South Dorcbester Avenue Suite 3 ChiCgO, IL 60637-1705 Tel.: 23) 533-4416 ibuse cibiolo~icaldivcrsitv.orcr

Sue A Klein US Attorney's Office 40 N Central Ave, Ste 1200 Phoenix, AZ 85004-4408 [email protected]

Brian Fredrick Russo Law Office of Brian F. Russo 111 W Monroe St, Ste 1212 Phoenix, AZ 85003 bfrusso(a;att. net

I s/ CD. Michel C.D. Michel

19


Documents

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