ELR Citation: ELR 20319
No(s). 83-6378 (9th Cir. Mar 25, 1985)

The court upholds the Bureau of Land Management's (BLM's) designation of Dove Springs Canyon in the California Desert Conservation Area as an off-road vehicle (ORV) free-play area as not in violation of the Federal Land Management and Policy Act (FLPMA), executive orders, or agency regulations requiring the prevention of "considerable adverse effects." The court first holds that the district court, in granting summary judgment to BLM, misconstrued the plaintiffs' complaint as only challenging a 1980 decision to keep the area open to ORVs. The complaint also alleges that applicable laws have required closure of the area since the 1980 decision. BLM's 1980 designation did not moot the plaintiffs' claims, since the applicable laws create a separate duty to close an area to ORV use when BLM finds that the ORVs are causing considerable adverse effects. Granting deference to the agency's interpretation of its own regulations, the court accepts BLM's reading of considerable" to mean "considerable in the context of the Desert Area as a whole." Though under Executive Order No. 11644, the Council on Environmental Quality (CEQ) oversees designation of ORV areas and has advised BLM to construe protective regulations liberally, CEQ's admonition does not conflict directly with BLM's interpretation. Also CEQ is not due as much deference in the matter as BLM, since BLM alone has the legal authority to determine whether and to what extent areas should be open to ORVs. The court rejects plaintiffs' arguments that BLM's reading conflicts with FLPMA §102(c), requiring management for multiple uses without impairment of productivity; §302(b), requiring avoidance of unnecessary degradation; and §601(a)(4), requiring management of the Desert Area for present and future use and enjoyment. In FLPMA §601 Congress called for allowing ORV use "where appropriate." The plaintiffs' interpretation of the regulation would effectively ban ORVs from the Desert Area, since their impact is almost always locally severe. Given that the agency interpretation is reasonable, and that the disputed area makes up only 0.025 percent of BLM lands in the Desert Area, the finding of no considerable adverse effects must be sustained.

A concurring opinion notes that when an agency is interpreting its own regulations, it is due an especially great amount of deference.

Counsel for Appellants
Laurens H. Silver
Sierra Club Legal Defense Fund, Inc.
2044 Fillmore st., San Francisco CA 94115
(415) 567-6100

Counsel for Appellees
Robert L. Klarquist
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2731

Robert E. Hinerfield, David Elson, David A. Juhnke
Murphy, Thornton, Hinerfield & Elson
744 N. Figueroa St., Los Angeles CA 90041
(213) 624-9900

Before: GOODWIN, FARRIS, and POOLE, Circuit Judges.