UNITED STATES COURT OF APPEALS FOR THE … Break...2012/06/01 · No. 11-35818 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MONTANA WILDERNESS ASSOCIATION Plaintiff-Appellant,

No. 11-35818

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MONTANA WILDERNESS ASSOCIATIONPlaintiff-Appellant,

v.

GENE TERLAND, et al., Defendants-Appellees,

and

MISSOURI RIVER STEWARDS, et al., Intervenor-Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MONTANA

District Court No. 4:09-cv-00095-SEH

MONTANA WILDERNESS ASSOCIATION’S OPENING BRIEF

Matthew K. BishopWestern Environmental Law Center103 Reeder’s AlleyHelena, MT 59601(406) 324-8011 (tel.)[email protected]

Counsel for Montana Wilderness Association

mailto:[email protected]

CORPORATE DISCLOSURE STATEMENT

Plaintiff-Appellant, Montana Wilderness Association does not have any

parent companies, subsidiaries, or affiliates that have issued shares to the public in

the United States or abroad.

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. The Upper Missouri River Breaks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. The Proclamation Designating the Breaks a National Monument. . . . . . . . . 8

C. BLM’s Management Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

A. Standard Of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..14

B. BLM’s Road System Violates FLPMA and The Proclamation. . . . . . . . . . .15

1. Designating Roads in WSAs Violates FLPMA’s Non-impairment Mandate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

2. Authorizing Motorized Uses on Ways and Car Camping Off SystemRoads Violates the Proclamation’s Prohibition on Off-road Travel. 24

C. BLM Took No Steps to Ensure the Bullwhacker Area – an Object of the Monument – is Protected as Required by the Proclamation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27

i

D. BLM Failed to Take a Hard Look at Cumulative Effects as Required by NEPA.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

1. The Upper Missouri National Wild & Scenic River. . . . . . . . . . . . . .35

2. The “Most Viable Elk Herd in Montana.” . . . . . . . . . . . . . . . . . . . . . 37

3. One of the “Premier Big Horn Sheep Herds in the Continental United States.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

E. BLM Failed to Engage in a “Reasonable and Good Faith Effort” to identify Cultural and Historic Properties as Required by the NHPA.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . 39

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

STATEMENT OF RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

CERTIFICATE OF SERVICE . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45

ADDENDUM

ii

TABLE OF AUTHORITIES

CASES

Barnes v. Babbitt, 329 F. Supp. 2d 1141, 1155 (D. Ariz. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

Bassett, New Mexico LLC v. U.S., 55 Fed.Cl. 63, 71 (Fed. Cl. 2002) . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . 22 Citizens of Overton Park v. Volpe, 401 U.S. 402, 415 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

Gifford Pinchot Task Force v. U.S. Fish & Wildlife, 378 F.3d 1059, 1065 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Grand Canyon Trust v. FAA, 290 F.3d 339, 346 (D.C. Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34

Great Basin Mine Watch v. Hankins, 456 F.3d 955, 971 (9th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

In Re Montana Wilderness Association, CV-09-95-GF-SEH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Kern v. BLM, 284 F.3d 1062, 1078 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34

Klamath-Siskiyou v. BLM, 387 F.3d 989, 994 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34, 36

League of Wilderness Defenders v. Forest Service, 549 F.3d 1211, 1215 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . 15

Meister v. U.S. Dept. of Agriculture, 623 F.3d 363, 367 (6th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

iii

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983) . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . 32

Native Ecosystems Council v. USFS, 418 F.3d 953, 965 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Northwest Ecosystem Alliance v. U.S. Fish & Wildlife Service, 475 F.3d 1136, 1140 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

ONDA v. BLM, 625 F.3d 1092, 1098 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . . .18, 21, 22, 25, 31, 33

Pueblo of Sandia v. Unites States, 50 F.3d 856, 861 (10th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40

Reeves v. United States, 54 Fed. Cl. 652, 666 (Fed. Cl. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20, 22

SEC v. Chenery Corp., 332 U.S. 194, 196-197 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32, 33

State of Utah v. Babbitt, 137 F.3d 1193, 1198 (10th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 n.5

Te-Moak Tribe of Western Shoshone Nevada v. USDOI, 608 F.3d 592, 607 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39, 40

STATUTES

5 U.S.C. § 706. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..14

5 U.S.C. § 706(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

16 U.S.C. § 431 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

16 U.S.C. § 470f . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39

iv

16 U.S.C. § 1133(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . 1

28 U.S.C. § 1291.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..1

43 U.S.C. § 1732(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

43 U.S.C. § 1782. . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

43 U.S.C. § 1782(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 21

43 U.S.C. § 1782(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

RULES

36 C.F.R. § 800.4. . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . .43

36 C.F.R. § 800.4 (a) . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .40

36 C.F.R. § 800.4 (b) . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . ..40

36 C.F.R. § 800.4 (b)(1) . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . .40

36 C.F.R. § 800.16 (d) . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 39

36 C.F.R. § 800.16 (y) . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .39 n. 10

40 C.F.R. § 1508.7 . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . .34

43 C.F.R. § 3802.0-5(m) . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . 18

43 C.F.R. § 6302.20. . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . .21

v

OTHER

Fed. R.C.P. 54 (B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .1

Fed. R. App. P. 4 (A)(1)(B) . . . . . . . . . . . . . .. . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . 1

House Report 94-1163, 94th Cong., 2d Sess., at 17 (May 15, 1976) . . . . . . . . . . . 18

vi

STATEMENT OF JURISDICTION

The district court had jurisdiction pursuant to 28 U.S.C. § 1331 (federal

question). The district court’s order on summary judgment became appealable after

entry of judgment. Fed. R.C.P. 54 (B). The district court entered a final judgment

disposing of all claims with respect to all parties in this mater on August 9, 2011.

See Excerpts of Record (“ER”) 5. Plaintiff-Appellant, the Montana Wilderness

Association (“MWA”), filed a notice of appeal on October 3, 2011, which was

timely because it was filed within 60 days after entry of judgment. Fed. R. App. P.

4 (A)(1)(B). This Court has jurisdiction pursuant to 28 U.S.C. § 1291.

ISSUES PRESENTED

1. Whether BLM’s decision to designate 24 miles of new roads in

Wilderness Study Areas (“WSAs”) violates the Federal Land Policy Management

Act’s (“FLPMA’s”) non-impairment mandate.

2. Whether BLM’s decision to authorize motorized travel on ways in WSAs

and car camping off road in the Monument violates the Proclamation’s prohibition

on motorized travel off-road.

3. Whether BLM protected the Bullwhacker area, an object of the

Monument, as required by the Proclamation.

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4. Whether BLM adequately analyzed, under the National Environmental

Policy Act (“NEPA”), the cumulative impacts of authorizing six airstrips, 404

miles of roads, and jet boat use up and down the river, in conjunction with pre-

existing oil and gas development and livestock grazing, on the objects of the

Monument.

5. Whether BLM’s decision not to conduct any on-the-ground inventories

qualifies as a “reasonable and good faith” effort to identify historic and cultural

properties under the National Historic Preservation Act (“NHPA”).

STATEMENT OF THE CASE

MWA appeals BLM’s decision to approve a new management plan for the

Upper Missouri River Breaks National Monument (“Monument”). On June 18,

2009, after exhausting all administrative remedies, MWA filed a complaint for

declaratory and injunctive relief challenging BLM’s plan which authorized over

400 miles of roads throughout the Monument, six airstrips for private planes and

helicopters, as well as jet boat use up and down the entire Missouri River (with

only a few seasonal restrictions). ER 44. MWA alleged BLM’s plan violated

FLPMA, Proclamation 7398, the Wild and Scenic Rivers Act, NEPA, and the

NHPA.

2

In addition to MWA’s challenge, two separate civil actions against BLM’s

plan for the Monument were also filed – one by Western Watersheds Project and

the other by The Wilderness Society, National Trust for Historic Preservation,

Friends of the Missouri Breaks Monument, and the Oil and Gas Accountability

Project. On February 8, 2010, the district court issued an order consolidating all

three cases. ER 49. Missouri River Stewards et al. and the Montana Pilots

Association were granted status as defendant-intervenors in the consolidated cases.

ER 46, 51. The district court designated MWA’s challenge as the lead case and

titled the newly consolidated action In Re Montana Wilderness Association, CV-

09-95-GF-SEH. ER 49. All parties filed cross-motions for summary judgment.

On August 9, 2011, the district court issued a final memorandum and order and

final judgment granting BLM’s and defendant-intervenors’ motions for summary

judgement and denying the motions of MWA, Western Watershed Project’s, and

The Wilderness Society et al. ER 6. The district court clerk entered a judgment on

August 9, 2011. ER 5. MWA filed a notice of appeal on October 3, 2011. ER 1.

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STATEMENT OF FACTS

A. The Upper Missouri River Breaks.

The Upper Missouri River Breaks (“the Breaks”) in north-central Montana is

The Breaks country includes thean irreplaceable part of our American heritage.1

149 mile Upper Missouri National Wild and Scenic River – the only free-flowing,

protected stretch of the entire 1,600 mile Missouri River. ER 96-97. Congress

chose to protect this segment of the Missouri in part, because it possesses “scenic

vistas, diverse wildlife species, breath taking geologic formations, prehistoric and

historic remains and the opportunity to experience solitude; all on the last free-

flowing stretch of the Missouri River.” ER 97. The Breaks also include six

Congressionally protected WSAs, the Cow Creek area of critical environmental

concern (“ACEC”), and portions of the Nez Perce and Lewis and Clark National

Historic Trails. ER 74, 189-91.

In 1805, Lewis and Clark encountered the Breaks on their westward leg of

the Corps of Discovery Expedition when they passed what is now the James Kipp

Recreation Area. ER 74, 284. On the afternoon of May 26, 1805, that Captain

The “Breaks” of the Missouri River are the deep coulees in the earth that were1

created by retreating glaciers and extend like convoluted fingers outward from theMissouri River. ER 87.

4

Lewis climbed the surrounding bluffs in the Breaks to behold a view of the Rocky

Mountains for the first time, a sight that brought both joy and dismay to the

expedition. ER287. In his journal, Clark describes the abundant wildlife of the

Breaks, including “the first big horn sheep observation by non-Indians in North

America.” Id. Lewis’ description of the Breaks’ magnificent White Cliffs area “is

especially vivid, and not just for his sometimes colorful spellings”:

The hills and river Clifts [sic] which we passed today exhibit a mostromantic appearance . . .

The bluffs of the river rise to hight [sic] of from 2 to 300 feet and in mostplaces nearly perpendicular; they are formed of remarkable white sandstonewhich is sufficiently soft to give way readily to the impression of water . . . .

ER 74.

Today, the Breaks remain largely unchanged since Lewis and Clark first

explored the area; indeed, it is probably the only segment of their epic journey that

they would still recognize today. What makes the Breaks so special and unique is

the opportunity to canoe and camp where Lewis and Clark camped, read their

journals, and experience first-hand what the expedition observed and wrote about

over 200 years ago. See ER 288. As described by Montana’s late Senator Lee

Metcalf:

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Those who would float the Missouri Breaks today can [camp] . . . among thecottonwoods and on the beaches where the Lewis and Clark expeditionencamped . . .[and] enjoy the truly unique, somewhat ironic, experience ofplacing a copy of the Lewis and Clark Journals across his knee and readingthe first impression, but still accurate, descriptions of the vivid scenery . . .

ER 293.

Long before the time of Lewis and Clark, the Breaks was inhabited “by

numerous native tribes, including the Blackfeet, Assiniboin, Gros Ventre (Atsina),

Crow, Plains Cree, and Plains Ojibwa.” ER 75. The “confluence of the Judith and

Missouri Rivers was the setting for important peace councils in 1846 and 1855.”

Id. And, in 1877, Chief Joseph and the Nez Perce crossed the Missouri and entered

the Breaks country in their attempt to escape to Canada. Id. “The Cow Island

Skirmish occurred in the Breaks and was the last encounter prior to the Nez Perce

surrender to the U.S. Army at the Battle of Bear Paw” just north of the Breaks. Id.;

see ER 90. Remnants of this rich history (as well as settlements from the early

pioneers and homesteaders) are scattered throughout the area. ER 75.

The Breaks country is also biologically important. Many of the wildlife

species recorded by Lewis and Clark (except grizzly bears, bison, and wolves) can

still be found including elk, big horn sheep, pronghorn, mule deer, and whitetail

deer. The area still boasts “the most viable elk herd in Montana and one of the

premier big horn sheep herds in the continental United States.” Id. The Breaks

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contain essential winter range for sage grouse, as well as habitat for prairie dogs

(Lewis sent Jefferson a prairie dog specimen from the Breaks which was, as Lewis

noted at the time, “new to science”). Id.

The lower reach of the Judith River in the Breaks, just above its confluence

with the Missouri, contains “one of the few remaining fully functioning

cottonwood gallery forest ecosystems on the Northern Plains.” Id. “Cottonwoods

are critical to the health of this river ecosystem. Bird populations depend on

cottonwoods for cover and nesting . . . [and] [d]eer, elk, amphibians, and even other

plant species depend on healthy cottonwood groves.” ER 89. A small tributary to

the Missouri River, Arrow Creek contains the largest concentration of antelope and

mule deer in the region, as well as “important spawning habitat for the endangered

pallid sturgeon.” ER 75. Arrow Creek is also “a critical seed source for

cottonwood trees for the flood plain along the Missouri.” Id.2

The cliff faces that parallel the Missouri River in the Breaks provide

“perching and nesting habitat for many raptors, including the sparrow hawk,

Arrow Creek was originally called slaughter creek by Lewis and Clark because2

this is where they encountered a large number of rotten, stinking buffalo piled upin incredible numbers. Lewis thought it was a buffalo jump but it turns out thecreek was in a “bend in the river where buffalo who had drowned in the riverwhen the ice broke had piled up. Wolves were there in such number, and were sostuffed with putrid meat, that Clark walked up to one and killed it with hisespontoon.” Stephen E. Ambrose, Undaunted Courage p. 227 (1996).

7

ferruginous hawk, peregrine falcon, prairie falcon, and golden eagle. Several pairs

of bald eagles nest along the River . . . and many others visit during the late fall and

early winter.” Id. The river’s shoreline areas “provide habitat for great blue heron,

pelican, and a wide variety of waterfowl.” Id. In total, this segment of the

Missouri River and its tributaries host “forty-eight fish species” including “one of

the six remaining paddlefish populations in the United States.” Id.

B. The Proclamation Designating the Breaks a National Monument.

In 1999, Secretary of the Interior Bruce Babbitt rafted a portion of the

Missouri within the Breaks. ER 295. During this trip, Secretary Babbitt

recognized the remarkable values and resources of the area and suggested that the

Department of the Interior should “consider some type of special management for

these lands.” Id.

That summer, BLM held a series of open houses across the State of Montana

with regard to special management designation for the Breaks and planning for the

upcoming Lewis and Clark bicentennial. Id. In August, 1999, the Secretary’s

office asked the Central Montana Resource Advisory Council (“RAC”) to develop

and recommend broad guidelines, or framework, to manage BLM lands in the

Breaks. Id. The RAC met monthly and in December, 1999, forwarded a sixteen

page report and recommendation package to the Secretary’s office. Id, ER 337-54.

8

The Secretary followed up with question-and-answer sessions in Great Falls in

May, 2000. ER 295.

On January 17, 2001, President Clinton exercised his authority under section

2 of the Antiquities Act, 16 U.S.C. § 431, and signed Presidential Proclamation

7398 establishing the “Upper Missouri River Breaks National Monument”for the

protection and benefit of future generations. ER 74-78. The Proclamation

identifies the “spectacular array of biological, geological, and historic objects of

interest” (described above) and sets apart and reserves, for the purpose of

protecting the Monument’s objects, all lands owned or controlled by the United

States in the Monument – approximately 377,346 acres. Id.3

To protect the Monument’s objects, the Proclamation directs the Secretary of

the Interior to: (1) prepare a “transportation plan that addresses the actions,

including road closures or travel restrictions, necessary to protect the objects”

identified in the Proclamation; (2) prohibit all motorized and mechanical vehicle

use off-road (except for emergency and authorized administrative purposes); and

(3) manage the area through the BLM in a manner that ensures the objects of the

Monument are protected. Id. The Proclamation also included a detailed boundary

These Federal lands were withdrawn from all forms of entry, location, selection,3

sale or leasing or other disposition under the public land laws, subject to “validexisting rights.” ER 76.

9

map of the Monument that was “attached to and forming a part of” the

Proclamation. ER 76, 78.

C. BLM’s Management Plan.

Following the Proclamation, BLM prepared a resource management plan

(“plan”) for the Monument. ER 99. BLM also prepared an environmental impact

statement (“EIS”) under NEPA and issued a record of decision (“ROD”) to adopt

the plan. Id. The plan includes both planning and site-specific, or

“implementation” level, decisions. ER 111. The plan authorizes the following:

• 404 miles of roads that will now be mapped, open, and maintained formotorized vehicle use throughout the Monument. ER 184. Approximately 58% of all land within the Monument is now within a halfmile of a system road. ER 326.

• Car camping and parking within a 100 foot corridor (50 feet off of eitherside) along system roads, except in WSAs. ER 188.

• Six airstrips for planes, helicopters, hot air balloons, and ultralights. Id. The six airstrips include Black Butte North, Bullwhacker, Cow Creek,Knox Ridge, Left Coulee, and Woodhawk. ER 188-89. Five airstripswill be open yearlong. Mechanized maintenance of the airstrips will beallowed with prior approval from BLM. ER 189.

• Use of motorized watercraft up and down the entire 149 mile rivercorridor, subject to a few seasonal restrictions (no wakespeed, downstream travel only, and a Sunday through Wednesday closurebetween June 15 to September 15 in a few river segments). ER 172.

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• No limit on the number of private motorized watercraft using theMonument. A limit of 23 special recreational permits for commercialrecreational use of the river. ER 170-71.

In addition, the plan recognizes (and does not make any changes to) the

following pre-existing activities:

• Approximately 43 existing oil and gas leases which were automaticallyrecognized as “valid existing rights” in the Monument. ER 175-176.

• Livestock grazing and associated range maintenance and improvementsfor approximately 38,000 animal unit months (“AUMs”). ER 154-155. Range projects (fences, reservoirs, land treatments, and otherdevelopments) will occur in the same manner and degree as theyoccurred prior to the Monument.

• Seven utility and transportation corridors, as well as the Klabzubapipeline on the southside of the river. ER 160. The “corridors will beavailable for all uses (pipelines, transmission/power lines, roads, etc.)with the appropriate mitigation.” ER 161.

When it authorized these activities pursuant to the plan, BLM made it clear

that little, if any, changes in management in the area would be made, irrespective of

the area’s status as a National Monument. ER 626. BLM also took the position

that the Proclamation was not enforceable or controlling but merely a guidance

document for further “multiple use” management under FLPMA. ER 333.

According to BLM:

11

[FLPMA] . . .provides the basic policy guidance for BLM’s management ofpublic lands. The FLPMA definition of multiple use stresses environmentalvalues that are consistent with the multiple use guidance provided by thePreferred Alternative . . . BLM is provided discretion concerning how best toapply this multiple use mandate . . .The management guidelines from theProclamation are incorporated into the Preferred Alternative to provideguidance concerning multiple use management that is consistent with theFLPMA definition [of multiple use].

Id.

In other words, BLM treated the Proclamation as non-binding guidance for

multiple use management. Under this approach, BLM puts multiple uses above (or

at the very least on equal footing) with protecting the objects and mistakenly

assumes it can authorize multiple uses in the Monument so long as such uses are

not specifically prohibited by the Proclamation. ER 333-34, 356. The end result is

a plan that authorizes motorized uses by land, air, and water throughout the entire

Monument.

SUMMARY OF THE ARGUMENT

BLM’s plan is illegal and should be set aside for five reasons. First, BLM’s

plan, which designates approximately 24 miles of system roads in the Monument’s

WSAs, violates FLPMA’s non-impairment mandate. BLM’s decision effectively

disqualifies the WSA’s from wilderness preservation (they are no longer “roadless”

areas) and results in new surface disturbance that will degrade wilderness values.

12

https://web2.westlaw.com/find/default.wl?rs=WLW9.02&ifm=NotSet&fn=_top&sv=Split&cite=74+Fed.+Reg.+8616+&vr=2.0&rp=%2ffind%2fdefault.wl&mt=Federal

Second, BLM’s decision to authorize motorized uses on ways in the WSAs

and car camping off-road violates the Proclamation’s prohibition on motorized

travel off-road.

Third, BLM’s refusal to recognize the Bullwhacker area as an object of the

Monument or take any steps to ensure it is protected, violates the Proclamation.

BLM authorized not one but three airstrips for planes and helicopters in the

Bullwhacker area as well as approximately 46 miles of roads without any concern

for, or analysis of, impacts to the area as a whole.

Fourth, BLM violated NEPA by failing to take a hard look at cumulative

impacts. BLM neglected to analyze how six airstrips, 404 miles of roads, and jet

boats, in conjunction with pre-existing uses, including livestock grazing and

associated developments (fencing, stock tanks), oil and gas development, and

rights-of-way may cumulatively impact the objects of the Monument. BLM never

analyzed the individually minor but collectively significant impacts to the objects

of the Monument, including the protected river corridor and prized elk and big horn

sheep herds.

Fifth, BLM’s refusal to conduct any on-the-ground inventories or surveys for

cultural and historic properties in the Monument does not qualify as a “reasonable

and good faith” effort under section 106 of the NHPA. At present, only a small

13

fraction – approximately 8.2% of the Monument and no more than 5% of the river

corridor (where most properties are likely to exist) – has been systematically

inventoried for cultural and historic properties. BLM’s own hired cultural resource

specialists and the State of Montana note that this is insufficient. The NHPA

requires more.

ARGUMENT

A. Standard Of Review.

This Court reviews de novo the district court’s order on summary judgment.

Northwest Ecosystem Alliance v. U.S. Fish & Wildlife Service, 475 F.3d 1136, 1140

(9th Cir. 2007). MWA challenges BLM’s plan for the Monument pursuant to the

APA, 5 U.S.C. § 706. The APA provides that courts “shall hold unlawful and set

aside agency action, findings, and conclusions found to be arbitrary and capricious,

an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. §

706(2)(A). While the APA standard of review is deferential, courts must

nonetheless engage in a “thorough, probing, in depth review” of BLM’s action in

order to fulfill their own duties under the APA. Citizens of Overton Park v. Volpe,

401 U.S. 402, 415 (1971). Courts must reject BLM’s decision if it is based on an

“erroneous interpretation of law,” if BLM “failed to consider an important aspect

of the problem,” or if BLM’s explanations run counter to evidence before the

14

agency. League of Wilderness Defenders v. Forest Service, 549 F.3d 1211, 1215

(9th Cir. 2008). BLM must also articulate “a rational connection between the facts

found and the decision made.” Gifford Pinchot Task Force v. U.S. Fish & Wildlife,

378 F.3d 1059, 1065 (9th Cir. 2004). Deference to BLM’s decision, therefore, is

not automatic. Nor is BLM entitled to deference “simply because it is an agency.”

Meister v. U.S. Dept. of Agriculture, 623 F.3d 363, 367 (6th Cir. 2010).

B. BLM’s Road System Violates FLPMA and the Proclamation.

BLM’s plan designates a system of over 400 miles of roads in the Monument

that will now be open for motorized use, depicted on Monument maps, and

maintained by the Agency. ER 183-88. Each road segment in the Monument is

assigned one of three classifications, i.e., collector, local, or resource and a

“maintenance level that reflects the appropriate management objectives.” ER 184-

85, 187. At the very least, all open roads in the Monument will be subject to a

“minimum maintenance standard” that includes the use of drainage structures and

material to control runoff, erosion, and rutting, grading (as necessary), brushing

and tree removal, and sinkhole repair. ER 185.

When designating this new road system, BLM focused on where it wanted

and thought that it needed to authorize motorized uses: “we need to determine the

15

transportation system needed for Monument (what roads do we need).” ER 364;

ER 183, 303. According to BLM:

The development of a transportation plan for the monument should not belimited to existing roads. Areas without vehicle access with existing roads orways are fair to consider as a valid transportation and access need.

ER 367 (emphasis added). As established below, this approach – which resulted in

roads designated in WSAs and the authorization of motorized uses on primitive

ways – violates FLPMA’s non-impairment mandate and the Proclamation.

1. Designating Roads in WSAs Violates FLPMA’s Non-impairmentMandate.

In FLPMA, Congress established a procedure for BLM to identify and

designate roadless tracts of land that possess wilderness characteristics, known as

WSAs, and then requires that WSAs be managed so as not to impair their

suitability for designation as wilderness under the Wilderness Act. 43 U.S.C. §

1782. This Congressional directive is“referred to as the ‘non-impairment’

mandate.” ER 377.

BLM violated this non-impairment mandate by designating roads in the

Monument’s WSAs. BLM explains that its new system of roads in the Monument

now includes “ways in the WSAs.” ER 303-04; ER 368. And the Monument’s

road map, which is available to the public, now depicts ways as permanent system

16

roads. Cf. ER 440-440A (road map) and ER 441 (ways in Cow Creek), ER 442

(ways in Antelope Creek), ER 443 (ways in Woodhawk).4

Pursuant to FLPMA, BLM identifies WSAs by inventorying public lands

under its management to identify “roadless areas of five thousand acres or more . . .

having wilderness characteristics described in the Wilderness Act.” ONDA v.

BecauseBLM, 625 F.3d 1092, 1098 (9th Cir. 2010) (citing 43 U.S.C. § 1782(a)).5

areas can qualify as wilderness only if roadless, BLM notes that it must “evaluate

whether the area being inventoried contains roads. Any roads should be clearly

identified and their impact on the naturalness of the area evaluated.” ER 562.

Congress stated:

BLM conceded in the district court that ways are now system roads in the4

Monument. BLM also did not dispute MWA’s “approximately 24 mile” figure forquantifying the amount of ways now designated as system roads. Table 4.42 in thefinal EIS states that approximately 23.8 miles of ways will be open for motorizeduse in the Monument. ER 444. This figure includes approximately 12 miles in theCow Creek WSA, 7.5 miles in Antelope Creek WSA, and 1.3 miles in theWoodhawk WSA. See id. (Table 4.42).

To do this, BLM adopted a nationwide wilderness review program and a5

guidance document known as its Wilderness Inventory Handbook (WIH) tostandardize the process. State of Utah v. Babbitt, 137 F.3d 1193, 1198 (10th Cir.1998) (explaining process); ER 444-74 (WIH).

17

The word ‘roadless’ refers to the absence of roads which have been improvedand maintained by mechanical means to insure relatively regular and continuoususe. A way maintained solely by the passage of vehicles does not constitute aroad.

ER 476.

Since 1976, BLM has consistently adopted and defended this Congressional

definition of a road to fulfill its duties to identify and manage WSAs. ER 563; ER

427, 479. BLM has also consistently made a distinction between “roads” and

“ways.” ER 427, 563, 590. As House Report 94-1163 notes, roads are improved

and maintained by mechanical means, whereas ways are created solely by the

passage of motor vehicles (usually by individuals driving illegally off-road). ER

476. Ways, unlike roads, are substantially unnoticeable on the landscape; they are

a “very minor feature of the overall area” and “not distinctly recognizable by the

average visitor as being manmade or man-caused because of age, weathering, or

biological change.” ER428; 43 C.F.R. § 3802.0-5(m) (same).

Significantly, ways (unlike roads) are not improved or maintained by BLM,

not mapped and/or signed as open for motor vehicles, and, if not used are left to

revegetate naturally on their own. ER 387, 360. Under FLPMA and the

Wilderness Act, therefore, the existence of a way on the landscape does not

disqualify an area from suitability as wilderness. ONDA, 625 F.3d at 1107 (noting

18

that “[t]he presence of ways did not render an area ‘roaded’ so as to eliminate that

area from further evaluation as wilderness.”) (citation omitted); ER 387.

In November, 1980, BLM completed its inventory of lands within what is

now the Monument, to determine if any qualified as WSAs. See ER 480; ER 296-

97. BLM found six areas to be roadless and to possess wilderness characteristics,

and designated them as WSAs: the Antelope Creek, Cow Creek, Dog Creek South,

Ervin Ridge, Stafford, and Woodhawk WSAs. ER 307-12. BLM applied the

definition of “road” from FLPMA to determine that these areas were roadless. ER

364. BLM also noted that even though these areas did not contain roads, they did

contain some ways, upon which vehicles sometimes traveled. ER 308 (noting ways

in Antelope Creek WSA); Id. (same in Cow Creek WSA); ER 311-12 (same in

Woodhawk WSA).

Once BLM designated each of the six areas a WSA, FLPMA directs BLM

not to “impair the suitability of such areas for preservation as wilderness.” 43

U.S.C. § 1782(c). BLM’s Interim Management Policy (“IMP”) for WSAs outlines,

in detail, what this legal obligation means. ER 378-79. At the very least, BLM

acknowledges that FLPMA’s “non-impairment” obligation triggers three

responsibilities, all of which the Agency violated when it chose to designate

19

approximately 24 miles of ways in the Cow Creek, Antelope Creek, and

Woodhawk WSAs as permanent system roads in the Monument.

First, BLM must “review all proposals for uses and/or facilities within WSAs

to determine whether the proposal meets the non-impairment standard.” ER 189;

see also ER 384. But this review never occurred. BLM did not analyze, consider,

or review whether designating system roads in the WSAs that will now be open,

mapped, and maintained by BLM violated FLPMA’s non-impairment mandate.

This aspect of BLM’s decision is not mentioned in the Agency’s non-impairment

finding. ER 190.

Second, under the non-impairment duty, BLM must ensure each WSA

satisfies the definition of wilderness “at the time Congress makes a decision on the

area.” ER 379. “As a practical matter, this means that once identified as a WSA

the area must meet this definition until designated as wilderness or released for

other uses.” Id. In other words, WSAs must continue to meet the definition of

wilderness throughout the study process, i.e., they must remain roadless, larger than

5,000 acres in size, and continue to possess wilderness values. Reeves v. United

States, 54 Fed. Cl. 652, 666 (Fed. Cl. 2002). BLM’s decision to designate 24 miles

of ways as system roads the Antelope Creek, Cow Creek, and Woodhawk WSAs

violates this duty because the areas are no longer roadless and, as such, may no

20

longer qualify for wilderness preservation under FLPMA and the Wilderness Act.

43 U.S.C. § 1782(a) (area must be “roadless”); 16 U.S.C. § 1133(c) (prohibition on

roads); 43 C.F.R. § 6302.20.

As this Court has explained, because the Wilderness Act “defines wilderness

as an area which ‘generally appears to have been affected primarily by the forces of

nature,’ the BLM has long treated the presence of roads as cancelling out any other

wilderness characteristics an area might otherwise have, as they defeat the ‘natural

conditions’ wilderness characteristic.” ONDA, 625 F.3d at 1107; see Barnes v.

Babbitt, 329 F. Supp. 2d 1141, 1155 (D. Ariz. 2004) (to qualify as wilderness, the

area “must have been ‘roadless,’ meaning it lacked roads . . .”).

BLM previously found the Antelope Creek, Cow Creek, and Woodhawk

WSAs qualified for wilderness preservation and designated each area a WSA, in

part, because they were roadless. ER 307-09, 311-12. They contained no roads

and only a few ways and other minor developments that did not impact the

apparent naturalness of the areas. Id. The ways, by the BLM’s own findings, were

substantially unnoticeable and would eventually “revegetate from lack of use” if

and when the areas were designated as wilderness. ER 308. For this reason, the

existence of ways in the WSAs did not disqualify the areas from wilderness

preservation under FLPMA or the Wilderness Act. ONDA, 625 F.3d at 1107 (“The

21

presence of ways did not render an area ‘roaded’ so as to eliminate that area from

further evaluation as wilderness”). This is no longer the case. Now, once roadless

WSAs have permanent roads and may therefore no longer qualify for preservation

as wilderness. 43 U.S.C. § 1782(a);16 U.S.C. § 1133(c); ONDA, 625 F.3d at 1107;

Bassett, New Mexico LLC v. U.S., 55 Fed.Cl. 63, 71 (Fed. Cl. 2002) (“the existence

of a road in a designated wilderness area impairs that area’s suitability for

preservation as wilderness within the meaning of the FLPMA”).

Third, BLM must protect the wilderness values of each WSA until Congress

makes a final decision. “While [WSA] tracts are under review, they are to be

managed in a manner to preserve their wilderness character.” ER 476. BLM has

an ongoing duty “to ensure that the existing wilderness values of all WSAs . . . are

not degraded so far . . . as to significantly constrain the Congress’ prerogative to

either designate a WSA as wilderness or release it for other uses.” ER 379. As the

court explained in Reeves, “[a]lthough all WSAs possess minimum wilderness

characteristics by definition, a WSA may be found not suitable because its value

for other purposes outweighs its wilderness value. Thus, BLM must ensure that a

WSA’s relative value as wilderness will not decrease as compared to the WSA’s

other values.” 54 Fed. Cl. at 666. “[I]f the proposed action would result in a

negative or detrimental chance in the state or condition of the wilderness value(s)

22

then that wilderness value would be degraded or impacted and the proposed action

must not be allowed.” ER 385.

Here, BLM’s decision to designate system roads in the WSAs results in new

surface disturbance and on-the-ground changes that will degrade the areas’

wilderness values pending a final decision from Congress. See ER 379. If the 24

miles of ways were left alone and remained “ways,” they would not be open for

motorized use in the Monument (see section B.2. infra), they would not be

included on the road system map, and no improvements or maintenance would be

allowed. ER 360, 429. They would remain largely unnoticeable on the landscape

and left to revegetate naturally. ER 360, 478. But now that the 24 miles of ways

are system roads, they are open to motorized use, depicted on Monument maps, and

subjected to BLM’s minimum road maintenance requirements. ER 185.

As open “resource roads” in the Monument, this means at a minimum, they

will be subject to a level 2 maintenance. ER 303, 185. Under level 2, “[d]rainage

structures and/or suitable material (e.g., rock or gravel) are to be installed and/or

maintained as needed to control runoff, erosion, sedimentation, and rutting.” ER

185. Grading will also be conducted “in specific locations as necessary to correct

drainage problems and erosion.” Id. Brushing and tree removal will also be

conducted “as needed,” and known sinkholes repaired when they present a safety

23

hazard. Id. In addition, the new roads will also be subjected to increased use, now

that they are depicted on the Monument’s transportation map and open to the

public for motorized travel. See ER 440-440A. Even BLM concedes that as

visitation increases in the Monument so too does vehicular travel on roads, which

in turn, increases “disturbances to soils; resulting in increased soil compaction,

rutting, surface runoff and subsequent erosion.” ER 322.

In sum, designating new system roads in the WSAs that will be open,

mapped, and maintained for motorized use and subjected to increased visitation

impairs the WSA’s suitability for wilderness preservation. Roadless areas now

have system roads and no longer qualify for wilderness protection and new surface

disturbance that impairs the WSA’s wilderness values will result. See ER 384, 379.

2. Authorizing Motorized Uses on Ways and Car Camping Off SystemRoads Violates the Proclamation’s Prohibition on Off-road Travel.

BLM’s decision to designate roads in WSAs not only violates FLPMA’s

non-impairment mandate (as discussed above) but also the Proclamation’s

prohibition on off-road travel. ER 74-78.

In December, 1999, the Central Montana Resource Advisory Council

(“RAC”) recommended in a report to the Secretary of the Interior that off-highway

vehicle (“OHV”) use in the Monument be limited to “designated roads and trails

24

with the exceptions of administrative uses and land management purposes.” ER

348. The Secretary agreed:

The Off-Highway-Vehicle language in the RAC’s report is well suited not onlyto addressing invasive species issues, but also ensuring that the overarchinggoal of maintaining the wild character of the area is achieved. Clearly, OHVuse must be limited to designated roads and trails inside the protective area.

ER 599 (emphasis added). Consequently, the Proclamation includes an express

prohibition on off-road travel: “For the purpose of protecting objects identified

above, the Secretary shall prohibit all motorized and mechanized vehicle use off-

road, except for emergency and authorized administrative use.” ER 76. BLM’s

EIS confirms: “All motorized and mechanized vehicles must stay on roads.” ER

336.

In this case, BLM chose to ignore the prohibition on off-road travel and

violate the Proclamation in two ways. First, BLM authorized motorized vehicle

use on approximately 24 miles of ways in the Monument’s WSAs by calling them

“roads.” ER 303. As discussed above, ways created solely by the passage of

vehicles in the Monument’s WSAs are not – and have never been considered –

roads and certainly not designated roads. See section B.1. supra. BLM has always

and continues to strenuously defend the distinction between ways and roads. See

ONDA, 625 F.3d at 1107; ER 563, 590, 427. One must assume therefore that the

25

Secretary of the Interior and President were well-aware of this distinction in 2001,

when the Proclamation prohibiting motorized vehicle use “off-road” was signed.

And surely BLM cannot be allowed to circumvent the Proclamation’s directive by

simply moving the goal-posts and re-defining the word “road” to now include ways

in WSAs.6

While it is true that pre-existing motorized uses are generally not prohibited

on ways in WSAs under FLPMA (so long as no maintenance, improvements, or

new impacts occur while Congress makes a final decision on designation), this

changed once the Proclamation was signed. Under FLPMA, when an area of land

is set aside for “specific purposes” according to any other provisions of law,

including a Proclamation, it shall be managed in accordance with such law. 43

U.S.C. § 1732(a); ER 601-02.

Second, BLM violated the Proclamation’s prohibition on off-road travel by

authorizing members of the public to drive off every road in the Monument (unless

in a WSA), park, and car camp so long as they are within a 100-foot corridor (50

feet from either side of a road). ER 188, 329. AR98. The authorization to car

When members of the public raised concerns over allowing motorized use on6

ways in the WSAs and whether such use violated the Proclamation’s prohibitionon off-road travel, BLM said it would “consider this” issue but never did. ER 360. BLM also said it would consult with the solicitor but this never occurred either. ER 367.

26

camp is not restricted to emergency or administrative purposes as required by the

Proclamation or necessary for members of the public to safely turn around. On the

contrary, it is designed to allow more and wide-spread motorized access throughout

the entire Monument. Individuals can now drive off-road and car camp wherever

According to BLM, this type ofthey would like, within the 100 foot corridor.7

activity creates soil disturbance, impacts native vegetation, spreads weeds, and may

impact yet-to-be-identified cultural resources. ER 323, 316.

C. BLM Took No Steps to Ensure the Bullwhacker Area – an Object of theMonument – is Protected as Required by the Proclamation.

The Proclamation explicitly recognizes the Bullwhacker area as an object of

the Monument:

The Bullwhacker area of the monument contains some of the wildest countryon all the Great Plains, as well as important wildlife habitat. During thestress-inducing winter months, mule deer and elk move up to the area fromthe river, and antelope and sage grouse move down to the area from thebenchlands. The heads of the coulees and breaks also contain archeologicaland historic sites, from teepee rings and remnants of historic trails toabandoned homesteads and lookout sites used by Meriwether Lewis.

ER 75. The area – named for the creek the runs through it – is located on the north

side of the Missouri River and is bounded “on the north by the Cow Island Trail, on

In the draft EIS, BLM proposed allowing motorized vehicles to “pull off7

designated roads no more than 300 feet for camping . . .” ER 485. In the plan,BLM shortened the distance to 50 feet and changed the camping reference to“parking” but, as BLM concedes, it means the same thing. ER 188, 487, 485, 331.

27

the east by the Cow Creek ACEC, the west [by the Monument boundary], and [on

the south by the Ervin Ridge WSA] and Missouri River. . .” ER 490-91, 495.8

As a well-defined area and object of the Monument, the Proclamation

requires that the Bullwhacker area be protected. ER 74-78. But BLM refused to

recognize or otherwise acknowledge its obligation to protect the Bullwhacker,

choosing instead to authorize a host of activities in the area under the new

Monument plan without any analysis, concern for its protection, or justification.

In fact, the Bullwhacker is more compromised now – post Proclamation –

than ever before. See AR001135-36ER 298-99, 489. BLM’s plan authorizes not

one but three airstrips for private planes and helicopters in the Bullwhacker. ER

440 (map). These three airstrips (Bullwhacker, Black Butte North, and Left

Coulee) “will remain open for private aircraft (planes, helicopters, hot air balloons,

or ultralights) to provide opportunities for recreational backcountry activities . . . .”

ER 188. Access to each of the three airstrips is provided by system roads and BLM

may allow a host of “mechanized maintenance, improvements, facilities or

MWA estimates the Bullwhacker area to be approximately 71,800 acres in size.8

ER 491 (map). BLM’s estimate is smaller, approximately 44,000 acres. ER 495(map). Either way, the Bullwhacker area remains a well defined and discrete areaof the Monument that is well documented and mapped by the Agency and usedand valued by members of the public.

28

infrastructure (tie downs, wind socks, airstrip delineators, etc.)” at each of the

airstrips. ER 189.

Notably, these three airstrips were illegally created, never subjected to

NEPA, largely unknown and undocumented prior to the area becoming a

Monument, and never authorized (to be constructed or used) by BLM prior to

adopting the plan. As noted by one individual:

I stood with the Secretary of the Interior in the Bullwhacker area when he talkedabout his vision for the area . . . I can’t say what he would have thought aboutthe airstrips, since BLM failed to apprise him of them and denied him theopportunity to address the issue. But I don’t think the preferred alternative istrue to his vision, nor is it true to your own vision statement.

ER 332.

In 2002, BLM was asked about three “existing” airstrips in the Bullwhacker

area and explained that it was not interested in “officially re-establishing these

airstrips, nor establishing new airstrips within the monument.” ER 603. In BLM’s

own words:

We are currently managing the Monument under the Presidential Proclamationand the June 2001 State Director’s Interim Guidance . . . Though thesedocuments are silent on airstrips within the monument, we don’t feel theywould be in conformance with either.

Id.

29

In the end, BLM elected to authorize all three airstrips in the Bullwhacker

without any analysis for how they may impact the area. BLM also abandoned

earlier plans to seasonally close the airstrips based on wildlife concerns (deer and

elk winter range). ER 513. All three airstrips are now open year-long.

In addition, BLM’s plan also designates approximately 46 miles of system

roads in the Bullwhacker area. Many of these roads were old ways that would

otherwise be abandoned and left to re-vegetate naturally. ER298-99. Only 12

miles of system roads, for instance, existed in the Bullwhacker in1979. ER 496.

The 46 miles of new system roads will now be mapped, open, and maintained for

motorized use. ER 440-440A (map), 496, 298-99. BLM could have prohibited

motorized use on primitive ways and two tracks and restricted motorized use to the

system roads that existed in 1979. Such steps would have lowered the road-density

and significantly improved conditions for wildlife in the Bullwhacker. ER 516.

BLM, however, decided to increase road density in the Bullwhacker beyond

historic levels. BLM also decided to re-construct a segment of the Bullwhacker

road (commonly known as the “Gist Bottom” road) to create a loop driving

opportunity down by the river. ER 328, 440-440A. Before the improvements this

route was de facto closed; it was almost impassible to navigate and off-limits to

public motorized use. See ER 607-08, 615.

30

In authorizing such actions, i.e., three airstrips, 46 miles of system roads, and

creating a loop driving opportunity by re-constructing the Gist Bottom road, BLM

never considered whether such actions – either individually or when combined with

pre-existing developments (oil and gas, livestock fencing and range improvements)

– were consistent with protecting the Bullwhacker area. BLM never analyzed

impacts to the Bullwhacker even though protecting the objects identified in the

Proclamation was the very purpose and impetus of the plan. See ONDA, 625 F.3d at

1109 (objective of project drives the analysis). Nor does BLM provide any

explanation in the draft EIS, final EIS, ROD, plan, or administrative record

detailing how its new plan complies with the Proclamation’s substantive standard

to protect the Bullwhacker area.9

The record reveals BLM confused the Bullwhacker’s purported ineligibility

for WSA protection under FLPMA (based on a 1979 inventory) with its separate

and subsequent legal obligation to protect the area pursuant to the Proclamation.

See ER 621, 225-26. The Proclamation’s more specific (and later) directive to

protect the objects of the Monument controls. 43 U.S.C. § 1732 (a); ER 601-02.

Indeed, aside from calling the Bullwhacker an “important component of the Breaks

Evidence in the record reveals the Agency was unsure about how to manage the9

area as late as August, 2006: “We need more direction . . . before we come up witha management designation for the Bullwhacker.” ER 621.

31

landscape” (ER 625), the Agency has yet to accept the area as on object of the

Monument worthy of protection. For support, BLM and the district court relied on

the Agency’s own “List of Significant Objects.” ER 15. But the Agency’s own

statements in the EIS explain that the list does “not replace or supplement the

Proclamation . . .Instead, the list is intended to only describe may of the natural

resources on public land that the BLM manages for in the Monument . . .[I]t does

not provide a list of objects of the Monument. Objects of the Monument are only

those listed in the Proclamation.” ER 335.

In sum, by refusing to acknowledge the area as an object of the Monument,

failing to analyze impacts to the area, or provide any explanation as to how the plan

ensures the Bullwhacker is protected, BLM clearly “failed to consider an important

aspect of the problem.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Automobile

Ins. Co., 463 U.S. 29, 43 (1983). “If the administrative action is to be tested by the

basis upon which it purports to rest, that basis must be set forth with clarity as to be

understandable. It will not do for a court to be compelled to guess at the theory

underlying the Agency’s action; nor can a court be expected to chisel that which

must be precise from what the Agency has left vague and indecisive.” SEC v.

Chenery Corp., 332 U.S. 194, 196-197 (1947); see Native Ecosystems Council v.

32

USFS, 418 F.3d 953, 965 (9th Cir. 2005) (the Court must “be able reasonably to

ascertain from the record” that agency complied with the standard).

While agencies are normally afforded a certain level of deference in these

matters, i.e., in determining what levels and types of use are consistent with

protecting the Bullwhacker area, there is nothing to give deference to in this case.

BLM never determined the plan was consistent with protecting the Bullwhacker

area of the Monument and this Court cannot “defer to a void.” ONDA, 625 F.3d at

1121.

D. BLM Failed to Take a Hard Look at Cumulative Effects as Required byNEPA.

In approving a new plan for the Monument, BLM neglected to analyze how

its litany of small decisions, i.e., six airstrips, over 400 miles of roads, and jet

boats, in conjunction with pre-existing uses, i.e., livestock grazing and associated

developments (fencing, stock tanks), oil and gas development, and utility rights-of-

way, may cumulatively impact the objects of the Monument as required by NEPA.

By definition, cumulative effects are “the impacts on the environment which

result from the incremental impact of the action when added to other past, present,

and reasonably foreseeable future actions regardless of what agency (Federal or

non-Federal) or person undertakes such other actions.” 40 C.F.R. § 1508.7.

33

Cumulative impacts can result from “individually minor but collectively significant

actions taking place over a period of time.” Id. The requirement to consider

cumulative effects is therefore an important one, designed to avoid the proverbial

death by a thousand cuts. Agencies must ensure individually minor but

“collectively significant” actions are adequately considered and analyzed. Id.

In Klamath-Siskiyou v. BLM, for instance, it was the addition of a small

amount of sediment from two timber sales that “could add up to something with a

much greater impact, until there comes a point where even a marginal increase will

mean no salmon survive.” 387 F.3d 989, 994 (9th Cir. 2004). Likewise, in Grand

Canyon Trust v. FAA, it was the small, incremental increase in noise over Zion

National Park (only 2% increase) from a new airport that needed to be analyzed in

conjunction with existing noise levels. 290 F.3d 339, 346 (D.C. Cir. 2002). If the

total impact from such small, incremental actions are not aggregated, it would be

easy to “underestimate the cumulative impacts. . .” Kern v. BLM, 284 F.3d 1062,

1078 (9th Cir. 2002). “Even a slight increase in adverse conditions . . . may

sometimes threaten harm that is significant. One more factory . . . may represent

the straw that breaks the back of the environmental camel.” Grand Canyon Trust,

290 F.3d at 343.

34

In this case, BLM neglected to analyze how a host of activities authorized by

its plan, in conjunction with grand-fathered actions already occurring in the

Monument (oil and gas development and livestock grazing) may cumulatively

impact the objects of the Monument, including: (1) the Upper Missouri National

Wild & Scenic River; (2) the “most viable” elk herd in Montana; and (3) one of the

“premier” big horn sheep herds in the continental United States.

1. The Upper Missouri National Wild & Scenic River.

The Proclamation identifies the 149 mile Upper Missouri National Wild &

Scenic River (the “River”) as an object of the Monument. ER 74. BLM’s plan

authorizes a number of activities in the River corridor, including the “wild”

segments which are to be managed for solitude and more primitive types of

recreation. ER 97. From river mile 104 to river mile 128, for instance, BLM

authorizes an airstrip, motorized use on eight roads, dispersed vehicle camping,

motorboats, and a level 2 developed boat camp. ER 440, 520. In addition, pre-

existing oil and gas development, livestock grazing (fencing, water developments)

and utility rights-of-way corridors are also occurring within or on land adjacent to

this wild segment of the River. ER 302.

Individually, each of these activities may not pose a significant threat to the

protected River’s values. One jet boat traveling up and down the river or one

35

private plane or helicopter utilizing one airstrip in the River corridor may have only

a limited impact on solitude and the primitive recreational experience.

Collectively, however, the impacts may be more significant. The addition of jet

boats, planes, helicopters, roads, in the River corridor as well as oil and gas

development on adjacent lands may add up to a much greater impact that

undermines the very values that caused the River to be protected and identified as

an object of the Monument. See ER 517 (EPA comments), 521 (“the noise, even

from the quietest boat engines, reflects off the river, and fills the breaks. There is

no escaping the intrusion.”), 526 (same). “Sometimes the total impact from a set of

actions may be greater than the sum of the parts.” Klamath-Siskiyou, 387 F.3d at

994.

BLM, however, does not know what the cumulative effects are because it

never analyzed the combined or collective impacts to the River. There is no

cumulative impacts analysis in the draft EIS, final EIS, or record as required by

NEPA. BLM includes the protected River in the final EIS’s “affected

environment” chapter but fails to take the logical next step (as it does with other

objects of the Monument) to describe impacts in the final EIS’s “environmental

consequences” section. Cf. ER 305-06, 313. This is a major oversight.

36

2. The “Most Viable Elk Herd in Montana.”

When Lewis and Clark first encountered land within the Monument they

described the abundance of wildlife, including “mule deer, elk, and antelope.” ER

74. The Proclamation notes that “many of the biological objects described in

Lewis’ and Clark’s journals continue to make the monument their home.” ER 75.

Among these biological objects is “the most viable elk herd in Montana.” Id.

BLM’s plan authorizes not one but five airstrips, hundreds of miles of roads,

utility rights-of-way, jet boats, developed recreational sites, along with pre-existing

uses such as livestock grazing and oil and gas development within elk winter range

in the Monument. ER 529. But BLM neglects to consider the combined or

cumulative impact of these actions on the local elk herd even though members of

the public and EPA raised serious concerns over the amount of roads in the

Monument and potential impacts to wildlife security. See ER 516. EPA noted:

We believe so many roads open to motorized travel has potential to adverselyimpact wildlife habitat and security, watersheds, water quality, fisheries, soilintegrity, native plants, ecosystem functions, historic and cultural resources, andthe remote, undeveloped and wild character of the Monument.

Id.

In the end, BLM’s EIS only includes some general assumptions about

possible impacts to elk winter range based on a generic literature review. ER 317,

37

321. This is insufficient: the “proper consideration of the cumulative impacts . . .

requires some quantified or detailed information; general statements about possible

effects and some risk do not constitute a hard look absent justification regarding

why a more definitive information could not be provided.” Great Basin Mine

Watch v. Hankins, 456 F.3d 955, 971 (9th Cir. 2006). Here, BLM did not properly

consider the cumulative effects on the “most viable elk herd in Montana.”

3. One of the “Premier Big Horn Sheep Herds in the Continental UnitedStates.”

On April 29, 1805, the Lewis and Clark expedition “recorded the first big

horn sheep observation by non-indians in North America.” ER 74. The

Monument now boasts “one of the premier big horn sheep herds in the continental

United States.” ER 75. BLM’s plan authorizes airstrips, motorboats, roads, utility

rights-of-way, and developed recreational sites within areas occupied by big horn

sheep, including big horn sheep lambing areas. Cf. ER 530-31 and ER 440.

Additional threats to big horn sheep include oil and gas development and livestock

grazing. Once again, however, BLM does not analyze the cumulative impacts of

these activities on big horn sheep as required by NEPA. The final EIS merely

includes a general literature review and general statements about possible direct

38

effects. ER 314, 317-18. The prized big horn sheep herd is not even specifically

mentioned in the final EIS’s cumulative impact section. See ER 319-20.

E. BLM Failed to Engage in a “Reasonable and Good Faith Effort” to IdentifyCultural and Historic Properties as Required by the NHPA.

Section 106 of the NHPA is often described as the “stop, look, and listen”

provision. Te-Moak Tribe of Western Shoshone Nevada v. USDOI, 608 F.3d 592,

607 (9th Cir. 2010) (citation omitted). Pursuant to section 106, BLM is required to

“take into account the effect of [an] undertaking on any district, site, building,

structure, or object that is included in or eligible for inclusion in the National

Register.” 16 U.S.C. § 470f.10

The process begins by defining the “area of potential effects,” which in this

case includes the Monument or, at the very least, land within the Monument that

may be directly or indirectly affected by the various prescriptions included in

BLM’s plan, i.e, six airstrips and new road system. 36 C.F.R. § 800.16 (d). BLM

is then directed to review all existing information on historic properties within this

area (including data on possible yet-to-be identified properties) and seek out

additional information from individuals with knowledge of the area, as well as

An “undertaking” includes any project, activity, or program carried out, 10

funded, or authorized by a federal agency. 36 C.F.R. § 800.16 (y). BLM’s plan,which designates six airstrips and areas and roads now open for motorized travelin the Monument, qualifies as an undertaking. See ER 532. In the district court,BLM did not dispute this fact. ER 33 (fn. 19).

39

information from local Indian tribes. 36 C.F.R. § 800.4 (a). Based on information

gathered from this first, initial step, BLM must then take additional steps

“necessary to identify historic properties within the area of potential effects.” 36

C.F.R. § 800.4 (b). The level of effort required is articulated in the Agency’s

regulations: BLM must make a “reasonable and good faith effort to carry out

appropriate identification efforts.” 36 C.F.R. § 800.4 (b)(1).

Determining what constitutes a reasonable effort “depends in part on the

likelihood that such properties may be present.” Pueblo of Sandia v. Unites States,

50 F.3d 856, 861 (10th Cir. 1995). BLM employs three different types of

inventories, or levels of effort, to identify cultural and historic properties: Class I,

II, and III. See Te-Moak Tribe, 608 F.3d at 601 n.10 (citing BLM guidance)

A Class I inventory is a professionally prepared study that includes a

compilation and analysis of all reasonably available cultural resource data and

literature, as well as a management-focused interpretation and synthesis of the data.

Id. A Class II inventory is a “probabilistic field survey” or sample survey that aids

in characterizing the “probable density, diversity, and distribution” of cultural

properties in an area. Id. A Class III inventory is an intensive, on-the-ground field

survey of the targeted area that is intended to locate and record all properties and

provides managers with “a complete record of cultural properties.” Id.

40

According to BLM, the “most frequently employed method of inventory is a

class III survey carried out for specific projects to enable BLM to comply with

Section 106 of the [NHPA] . . . before making decisions about proposed land and

resource uses.” Addendum (BLM Manual § 8110.21). In fact, where, as here, there

is a reasonable expectation that a proposed travel designation will increase,

concentrate, or expand travel “into areas where historic properties are likely to be

adversely affected, Class III inventory and compliance with section 106 . . .is

required.” ER 532, 537.

In this case, BLM violated section 106 of the NHPA by engaging in little to

no effort to identify cultural and historic properties in the Monument. No Class II

or Class III inventories were undertaken even though the plan is designed, in part,

to manage the unique and irreplaceable historic and cultural resources of the

Monument. ER 74. In the district court, BLM argued no new impacts or routes

would be created by the plan so no such effort is required. But this is not accurate.

BLM’s plan creates new system roads by converting old, often illegally created

two-tracks and ways (in WSAs) into system roads that will now be mapped,

officially open, and maintained by BLM. See ER 327, 183, 185. Some of the new

system roads are in the river corridor, an acknowledged area of high probability for

historic properties. ER 300; cf. ER 442 and ER 440. BLM’s plan also authorizes

41

car camping and parking within a 100 foot corridor along system roads (a new

impact) and authorizes six airstrips in the Monument that will require a certain

level of maintenance and access. These airstrips were never previously authorized

by BLM. New surface disturbance from the 404 miles of roads, 100 foot camping

corridor, and six airstrips will therefore occur and will concentrate uses to

particular areas. See ER 300, 316. And yet no Class II or Class III inventories were

done; not in the river corridor and not even where the on-the-ground effects of the

new plan will be felt.

Instead, BLM relied entirely on a questionable Class I literature review. ER

544. BLM hired a private firm in Idaho (North Wind) to send a record and

literature request to the State Historic Preservation Officer (“SHPO”) in Helena,

requested site forms from the University of Montana, and then conducted reviews

of the 400 properties identified from the literature search. Id. That is it. No on-

the-ground surveys occurred and North Wind did not visit the Monument. As a

result, BLM itself concedes that only a small fraction – approximately 8.2% of the

Monument and no more than 5% of the river corridor – has been systematically

inventoried for cultural and historic properties. ER 549, 300-301. And most of

these inventories occurred nearly 50 years ago, in the 1960s and 1970s. Id; ER

42

546. Even North Wind’s cultural resource specialists stated that this level of effort

is insufficient:

The combination of minimal site information, inconsistent survey methods anda dynamic Missouri River that has probably eroded away known culturalresources and exposed new cultural resources suggests that a Class III culturalresource inventory be conducted in the [Monument] to locate and recordcultural resources to today’s standards.

ER 546 (emphasis added). The State of Montana agreed: “Further investigations of

cultural and historic sites are necessary to develop strategies for their protection.”

ER 325.

MWA is not suggesting that BLM must walk and survey every inch of the

Monument. But given the historic importance of the Monument, the high

probability of discovering historic properties--especially in the river corridor and

the specific areas to be affected by the six airstrips, new road system, and 100 foot

camping corridor – more than a Class I literature review is required under the

NHPA. ER 533; 36 C.F.R. § 800.4.

CONCLUSION

For the foregoing reasons, MWA respectfully requests this Court reverse the

judgment of the district court and declare that BLM violated FLPMA, the

Proclamation, NEPA, and the NHPA for the reasons stated above.

Respectfully submitted this 1 day of June, 2012.st

43

WESTERN ENVIRONMENTAL LAW CENTER

/s/ Matthew K. Bishop Matthew K. Bishop103 Reeder’s AlleyHelena, Montana 59601(406) 324-8011 (tel.), (406) 443-6305 (fax)[email protected]

Counsel for Plaintiff-Appellant, MWA

STATEMENT OF RELATED CASES

Pursuant to Circuit Rule 28-2.6, MWA hereby notifies this Court of two

related cases that arose out of the same consolidated case in the district court: (1)

The Wilderness Society et al., v. Terland, et al., Ninth Circuit No. 11-35821; and

(2) Western Watersheds Project v. Abbey et al., Ninth Circuit No. 11-35705.

CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rule of Appellate Procedure 32 (A)(7)(c), the

undersigned counsel of record hereby certifies that this opening brief is

proportionally spaced, has a typeface of 14 points or more and contains 9,755

words. MWA’s counsel relied on Corel Word Perfect 12 to obtain the word count.

/s/ Matthew K. Bishop Matthew K. Bishop

44

mailto:[email protected]

CERTIFICATE OF SERVICE

I hereby certify that on June 1, 2012, I electronically filed the forgoing

document using the CM/ECF system which caused all counsel of record and parties

in this matter to receive electronic notification of this filing. I also mailed, via U.S.

Mail, four copies of MWA’s Excerpts of Record to this Court and mailed an

additional copy of the Excerpts of Record to each party in this matter.

/s/ Matthew K. Bishop Matthew K. Bishop

CERTIFICATION

Pursuant to this Court’s June 4, 2012, Order, I hereby certify that this brief is

identical to the version submitted electronically.

Submitted this 4 day of June, 2012.th

/s/ Matthew K. BishopMatthew K. Bishop

45

ADDENDUM

PRESIDENTIAL DOCUMENTS

Proclamation 7398 of January 17, 2001 (66 Federal Register 7359)

Establishment of the Upper Missouri River Breaks National Monument

By the President of the United States of America

A Proclamation

The Upper Missouri River Breaks National Monument contains a spectacular arrayof biological, geological, and historical objects of interest. From Fort Bentonupstream into the Charles M. Russell National Wildlife Refuge, the monumentspans 149 miles of the Upper Missouri River, the adjacent Breaks country, andportions of Arrow Creek, Antelope Creek, and the Judith River. The area hasremained largely unchanged in the nearly 200 years since Meriwether Lewis andWilliam Clark traveled through it on their epic journey. In 1976, the Congressdesignated the Missouri River segment and corridor in this area a National Wildand Scenic River (Public Law 94-486, 90 Stat. 2327). The monument alsoencompasses segments of the Lewis and Clark National Historic Trail, the NezPerce National Historic Trail, and the Cow Creek Island Area of CriticalEnvironmental Concern.

Lewis and Clark first encountered the Breaks country of the monument on theirwestward leg. In his journal, Clark described the abundant wildlife of the area,including mule deer, elk, and antelope, and on April 29, 1805, the Lewis and Clarkexpedition recorded the first big horn sheep observation by non-Indians in NorthAmerica. Lewis' description of the magnificent White Cliffs area on the westernside of the monument is especially vivid, and not just for his sometimes colorfulspellings:

“The hills and river Clifts which we passed today exhibit a most romanticappearance.... The bluffs of the river rise to hight of from 2 to 300 feet and in mostplaces nearly perpendicular; they are formed of remarkable white sandstone whichis sufficiently soft to give way readily to the impression of water...

“The water in the course of time ... has trickled down the soft sand clifts and woarnit into a thousand grotesque figures, which with the help of a little immaginationand an oblique view, at a distance are made to represent eligant ranges of loftyfreestone buildings, having their parapets well stocked with statuary; collumns ofvarious sculptures both grooved and plain, are also seen supporting long galleriesin front of these buildings; in other places on a much nearer approach and with thehelp of less immagination we see the remains or ruins of eligant buildings; somecollumns standing and almost entire with their pedestals and capitals; othersretaining their pedestals but deprived by time or accident of their capitals, somelying prostrate an broken othe[r†>s in the form of vast pyramids of conic structurebearing a serees of other pyramids on their tops...

As we passed on it seemed as if those seens of visionary inchantment would neverhave and [an† end; for here it is too that nature presents to the view of the travelervast ranges of walls of tolerable workmanship, so perfect indeed are those wallsthat I should have thought that nature had attempted here to rival the human art ofmasonry...”

The monument is covered with sedimentary rocks deposited in shallow seas thatcovered central and eastern Montana during the Cretaceous period. Glaciers,volcanic activity, and erosion have since folded, faulted, uplifted, and sculpted thelandscape to the majestic form it takes today.

The area remains remote and nearly as undeveloped as it was in 1805. Many of thebiological objects described in Lewis' and Clark's journals continue to make themonument their home. The monument boasts the most viable elk herd in Montanaand one of the premier big horn sheep herds in the continental United States. Itcontains essential winter range for sage grouse as well as habitat for prairie dogs.Lewis sent Jefferson a prairie dog specimen which was, as Lewis noted at the time,“new to science.” Abundant plant life along the River and across the Breakscountry supports this wildlife. The lower reach of the Judith River, just above itsconfluence with the Missouri, contains one of the few remaining fully functioningcottonwood gallery forest ecosystems on the Northern Plains. Arrow Creek,originally called Slaughter River by Lewis and Clark, contains the largestconcentration of antelope and mule deer in the monument as well as importantspawning habitat for the endangered pallid sturgeon. An undammed tributary to theMissouri River, Arrow Creek is a critical seed source for cottonwood trees for theflood plain along the Missouri.

The cliff faces in the monument provide perching and nesting habitat for manyraptors, including the sparrow hawk, ferruginous hawk, peregrine falcon, prairiefalcon, and golden eagle. Several pairs of bald eagles nest along the River in themonument and many others visit during the late fall and early winter. Shorelineareas provide habitat for great blue heron, pelican, and a wide variety of waterfowl.The River and its tributaries in the monument host forty-eight fish species,including goldeye, drum, sauger, walleye, northern pike, channel catfish, and smallmouth buffalo. The monument has one of the six remaining paddlefish populationsin the United States. The River also supports the blue sucker, shovel nose sturgeon,sicklefin, sturgeon chub, and the endangered pallid sturgeon.

The Bullwacker area of the monument contains some of the wildest country on allthe Great Plains, as well as important wildlife habitat. During the stress-inducingwinter months, mule deer and elk move up to the area from the river, and antelopeand sage grouse move down to the area from the benchlands. The heads of thecoulees and breaks also contain archeological and historical sites, from teepee ringsand remnants of historic trails to abandoned homesteads and lookout sites used byMeriwether Lewis.

Long before the time of Lewis and Clark, the area was inhabited by numerousnative tribes, including the Blackfeet, Assiniboin, Gros Ventre (Atsina), Crow,Plains Cree, and Plains Ojibwa. The confluence of the Judith and Missouri Riverswas the setting for important peace councils in 1846 and 1855. In 1877, the NezPerce crossed the Missouri and entered the Breaks country in their attempt toescape to Canada. The Cow Island Skirmish occurred in the Breaks and was thelast encounter prior to the Nez Perce surrender to the U.S. Army at the Battle ofBear Paw just north of the monument. Pioneers and the Army followed Lewis andClark in the 1830s establishing Fort Piegan, Fort McKenzie, and Fort Benton.Remnants of this rich history are scattered throughout the monument, and the Rivercorridor retains many of the same qualities and much of the same appearance todayas it did then.

Section 2 of the Act of June 8, 1906 (34 Stat. 225, 16 U.S.C. 431), authorizes thePresident, in his discretion, to declare by public proclamation historic landmarks,historic and prehistoric structures, and other objects of historic or scientific interestthat are situated upon the lands owned or controlled by the Government of theUnited States to be national monuments, and to reserve as a part thereof parcels ofland, the limits of which in all cases shall be confined to the smallest areacompatible with the proper care and management of the objects to be protected.

WHEREAS it appears that it would be in the public interest to reserve such landsas a national monument to be known as the Upper Missouri River Breaks NationalMonument:

NOW, THEREFORE, I, WILLIAM J. CLINTON, President of the United States ofAmerica, by the authority vested in me by section 2 of the Act of June 8, 1906 (34Stat. 225, 16 U.S.C. 431), do proclaim that there are hereby set apart and reservedas the Upper Missouri River Breaks National Monument, for the purpose ofprotecting the objects identified above, all lands and interests in lands owned orcontrolled by the United States within the boundaries of the area described on themap entitled “Upper Missouri River Breaks National Monument” attached to andforming a part of this proclamation. The Federal land and interests in land reservedconsist of approximately 377,346 acres, which is the smallest area compatible withthe proper care and management of the objects to be protected.

All Federal lands and interests in lands within the boundaries of this monument arehereby appropriated and withdrawn from all forms of entry, location, selection,sale, or leasing or other disposition under the public land laws, including but notlimited to withdrawal from location, entry, and patent under the mining laws, andfrom disposition under all laws relating to mineral and geothermal leasing, otherthan by exchange that furthers the protective purposes of the monument. Theestablishment of this monument is subject to valid existing rights. The Secretary ofthe Interior shall manage development on existing oil and gas leases within themonument, subject to valid existing rights, so as not to create any new impacts thatwould interfere with the proper care and management of the objects protected bythis proclamation.

The Secretary of the Interior shall prepare a transportation plan that addresses theactions, including road closures or travel restrictions, necessary to protect theobjects identified in this proclamation.

For the purpose of protecting the objects identified above, the Secretary shallprohibit all motorized and mechanized vehicle use off road, except for emergencyor authorized administrative purposes.

Lands and interests in lands within the proposed monument not owned by theUnited States shall be reserved as a part of the monument upon acquisition of titlethereto by the United States.

The Secretary of the Interior shall manage the monument through the Bureau ofLand Management, pursuant to applicable legal authorities, including the NationalWild and Scenic Rivers Act, to implement the purposes of this proclamation.

Because waters of the Upper Missouri River through the monument area havealready been reserved through the Congress's designation of the area as acomponent of the National Wild and Scenic River System in 1976, thisproclamation makes no additional reservation of water, except in two smalltributaries, the Judith River and Arrow Creek. These tributaries contain outstandingobjects of biological interest that are dependent on water, such as a fullyfunctioning cottonwood gallery forest ecosystem that is rare in the Northern Plains.Therefore, there is hereby reserved, as of the date of this proclamation and subjectto valid existing rights, a quantity of water in the Judith River and Arrow Creeksufficient to fulfill the purposes for which this monument is established. Nothing inthis reservation shall be construed as a relinquishment or reduction of any wateruse or rights reserved or appropriated by the United States on or before the date ofthis proclamation.

Nothing in this proclamation shall be deemed to enlarge or diminish thejurisdiction of the State of Montana with respect to fish and wildlife management.

Nothing in this proclamation shall be deemed to enlarge or diminish the rights ofany Indian tribe.

Laws, regulations, and policies followed by the Bureau of Land Management inissuing and administering grazing permits or leases on all lands under itsjurisdiction shall continue to apply with regard to the lands in the monument.

Nothing in this proclamation shall be deemed to revoke any existing withdrawal,reservation, or appropriation; however, the national monument shall be thedominant reservation.

Warning is hereby given to all unauthorized persons not to appropriate, injure,destroy, or remove any feature of this monument and not to locate or settle uponany of the lands thereof.

IN WITNESS WHEREOF, I have hereunto set my hand this seventeenth day ofJanuary, in the year of our Lord two thousand one, and of the Independence of theUnited States of America the two hundred and twenty-fifth.

WILLIAM J. CLINTON

STATUTES, REGULATIONS, AND AGENCY GUIDANCE

The Federal Land Policy Management Act (“FLPMA”), 43 U.S.C. §§ 1701-1787.

§ 1732. Management of use, occupancy, and development of public lands

(a) Multiple use and sustained yield requirements applicable; exceptionThe Secretary shall manage the public lands under principles of multiple use andsustained yield, in accordance with the land use plans developed by him undersection 1712 of this title when they are available, except that where a tract of suchpublic land has been dedicated to specific uses according to any other provisions oflaw it shall be managed in accordance with such law.

* * *§ 1782. Bureau of Land Management Wilderness Study

(a) Lands subject to review and designation as wildernessWithin fifteen years after October 21, 1976, the Secretary shall review thoseroadless areas of five thousand acres or more and roadless islands of the publiclands, identified during the inventory required by section 1711(a) of this title ashaving wilderness characteristics described in the Wilderness Act of September 3,1964 (78 Stat. 890; 16 U.S.C. 1131 et seq.) and shall from time to time report to thePresident his recommendation as to the suitability or nonsuitability of each sucharea or island for preservation as wilderness: Provided, That prior to anyrecommendations for the designation of an area as wilderness the Secretary shallcause mineral surveys to be conducted by the United States Geological Survey andthe United States Bureau of Mines to determine the mineral values, if any, that maybe present in such areas: Provided further, That the Secretary shall report to thePresident by July 1, 1980, his recommendations on those areas which the Secretaryhas prior to November 1, 1975, formally identified as natural or primitive areas.The review required by this subsection shall be conducted in accordance with theprocedure specified in section 3(d) of the Wilderness Act [16 U.S.C.A. § 1132(d)].

(b) Presidential recommendation for designation as wildernessThe President shall advise the President of the Senate and the Speaker of the Houseof Representatives of his recommendations with respect to designation aswilderness of each such area, together with a map thereof and a definition of itsboundaries. Such advice by the President shall be given within two years of thereceipt of each report from the Secretary. A recommendation of the President fordesignation as wilderness shall become effective only if so provided by an Act ofCongress.

(c) Status of lands during period of review and determinationDuring the period of review of such areas and until Congress has determinedotherwise, the Secretary shall continue to manage such lands according to hisauthority under this Act and other applicable law in a manner so as not to impairthe suitability of such areas for preservation as wilderness, subject, however, to thecontinuation of existing mining and grazing uses and mineral leasing in the mannerand degree in which the same was being conducted on October 21, 1976: Provided,That, in managing the public lands the Secretary shall by regulation or otherwisetake any action required to prevent unnecessary or undue degradation of the landsand their resources or to afford environmental protection. Unless previouslywithdrawn from appropriation under the mining laws, such lands shall continue tobe subject to such appropriation during the period of review unless withdrawn bythe Secretary under the procedures of section 1714 of this title for reasons otherthan preservation of their wilderness character. Once an area has been designatedfor preservation as wilderness, the provisions of the Wilderness Act [16 U.S.C.A. §1131 et seq.] which apply to national forest wilderness areas shall apply withrespect to the administration and use of such designated area, including mineralsurveys required by section 4(d)(2) of the Wilderness Act [16 U.S.C.A. §1133(d)(2)], and mineral development, access, exchange of lands, and ingress andegress for mining claimants and occupants.

The National Historic Preservation Act (“NHPA”), 16 U.S.C. § 470f

§ 470f. Effect of Federal undertakings upon property listed in NationalRegister; comment by Advisory Council on Historic Preservation

The head of any Federal agency having direct or indirect jurisdiction over aproposed Federal or federally assisted undertaking in any State and the head of anyFederal department or independent agency having authority to license anyundertaking shall, prior to the approval of the expenditure of any Federal funds onthe undertaking or prior to the issuance of any license, as the case may be, take intoaccount the effect of the undertaking on any district, site, building, structure, orobject that is included in or eligible for inclusion in the National Register. The headof any such Federal agency shall afford the Advisory Council on HistoricPreservation established under part B of this subchapter a reasonable opportunity tocomment with regard to such undertaking.

36 C.F.R. § 800.4 Identification of historic properties.

(a) Determine scope of identification efforts. In consultation with theSHPO/THPO, the agency official shall:

(1) Determine and document the area of potential effects, as defined in § 800.16(d);

(2) Review existing information on historic properties within the area of potentialeffects, including any data concerning possible historic properties not yetidentified;

(3) Seek information, as appropriate, from consulting parties, and other individualsand organizations likely to have knowledge of, or concerns with, historic propertiesin the area, and identify issues relating to the undertaking's potential effects onhistoric properties; and

(4) Gather information from any Indian tribe or Native Hawaiian organizationidentified pursuant to § 800.3(f) to assist in identifying properties, including thoselocated off tribal lands, which may be of religious and cultural significance to themand may be eligible for the National Register, recognizing that an Indian tribe orNative Hawaiian organization may be reluctant to divulge specific informationregarding the location, nature, and activities associated with such sites. The agency

official should address concerns raised about confidentiality pursuant to § 800.11(c).

(b) Identify historic properties. Based on the information gathered underparagraph (a) of this section, and in consultation with the SHPO/THPO and anyIndian tribe or Native Hawaiian organization that might attach religious andcultural significance to properties within the area of potential effects, the agencyofficial shall take the steps necessary to identify historic properties within the areaof potential effects.

(1) Level of effort. The agency official shall make a reasonable and good faitheffort to carry out appropriate identification efforts, which may include backgroundresearch, consultation, oral history interviews, sample field investigation, and fieldsurvey. The agency official shall take into account past planning, research andstudies, the magnitude and nature of the undertaking and the degree of Federalinvolvement, the nature and extent of potential effects on historic properties, andthe likely nature and location of historic properties within the area of potentialeffects. The Secretary's standards and guidelines for identification provideguidance on this subject. The agency official should also consider other applicableprofessional, State, tribal, and local laws, standards, and guidelines. The agencyofficial shall take into account any confidentiality concerns raised by Indian tribesor Native Hawaiian organizations during the identification process.

(2) Phased identification and evaluation. Where alternatives under considerationconsist of corridors or large land areas, or where access to properties is restricted,the agency official may use a phased process to conduct identification andevaluation efforts. The agency official may also defer final identification andevaluation of historic properties if it is specifically provided for in a memorandumof agreement executed pursuant to § 800.6, a programmatic agreement executedpursuant to § 800.14(b), or the documents used by an agency official to complywith the National Environmental Policy Act pursuant to § 800.8. The processshould establish the likely presence of historic properties within the area ofpotential effects for each alternative or inaccessible area through backgroundresearch, consultation and an appropriate level of field investigation, taking intoaccount the number of alternatives under consideration, the magnitude of theundertaking and its likely effects, and the views of the SHPO/THPO and any otherconsulting parties. As specific aspects or locations of an alternative are refined oraccess is gained, the agency official shall proceed with the identification andevaluation of historic properties in accordance with paragraphs (b)(1) and (c) ofthis section.

36 C.F.R. § 800.16 Definitions.

* * *(d) Area of potential effects means the geographic area or areas within which anundertaking may directly or indirectly cause alterations in the character or use ofhistoric properties, if any such properties exist. The area of potential effects isinfluenced by the scale and nature of an undertaking and may be different fordifferent kinds of effects caused by the undertaking.

* * *

(l)(1) Historic property means any prehistoric or historic district, site, building,structure, or object included in, or eligible for inclusion in, the National Register ofHistoric Places maintained by the Secretary of the Interior. This term includesartifacts, records, and remains that are related to and located within such properties.The term includes properties of traditional religious and cultural importance to anIndian tribe or Native Hawaiian organization and that meet the National Registercriteria.

(2) The term eligible for inclusion in the National Register includes both propertiesformally determined as such in accordance with regulations of the Secretary of theInterior and all other properties that meet the National Register criteria.

* * *(y) Undertaking means a project, activity, or program funded in whole or in partunder the direct or indirect jurisdiction of a Federal agency, including those carriedout by or on behalf of a Federal agency; those carried out with Federal financialassistance; and those requiring a Federal permit, license or approval.

BLM Manual § 8110.21

* * *21 Kinds of Inventory. The BLM cultural resource inventory system is composedof three kinds of inventory: class I - existing information inventory; class II -probabilistic field survey; and class III - intensive field survey (see .21A-C). Eachis designed to provide specific kinds of cultural resource information for variousplanning and resource management needs. The most frequently employed methodof inventory is class III survey carried out for specific projects toenable BLM to comply with Section 106 of the National Historic Preservation Act(NHPA) before making decisions about proposed land and resource uses. In thosecases, unless specifically prohibited in regulations, the cost of inventories shall bethe responsibility of the land-use applicant or the benefiting BLM activity, asauthorized in Section 110(g) of NHPA.

Documents

UNITED STATES COURT OF APPEALS FOR THE … Break...2012/06/01 · No. 11-35818 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MONTANA WILDERNESS ASSOCIATION Plaintiff-Appellant,