ELR Citation: ELR 21237
No(s). s. 87-2832 et al (10th Cir. Jun 6, 1988)

The court upholds the Bureau of Land Management's (BLM's) decision not to regulate proposed improvements by a county government to a road passing between two wilderness study areas (WSAs) in Utah, but holds that BLM must prepare an environmental assessment (EA) for the construction project. The court first holds that BLM's refusal to require the county to prove the legitimacy of its right-of-way through federal lands, and to prevent the county's trespass if there is no valid right-of-way, is reviewable under the Administrative Procedure Act (APA). Although BLM's position in this case might be characterized as a decision not to take enforcement action, it is reviewable pursuant to APA §701(a) because the Federal Land Policy and Management Act (FLPMA) provides "law to apply"; under FLPMA, the Department of the Interior must define the boundaries of WSAs, manage them to preserve their suitability for wilderness designation and to prevent unnecessary or undue degradation, and protect roadless areas. The court next holds that although FLPMA may not create a private right-of-action against BLM and the county, plaintiffs may maintain their action against BLM under APA §702. Moreover, plaintiffs' lawsuit can reach the county because both permissive and compulsory joinder are appropriate on the facts of this case.

The court next holds that Utah law controls the question of whether the proposed construction, which includes a widening of the road, is within the existing right-of-way. Applying Utah's standard that the scope of a right-of-way is that which is reasonable and necessary for the type of use to which the road has been put, the court holds that the proposed improvements are within the county's entitlement. The court holds that because the 1866 grant was open-ended and self-executing, every new use of the road automatically vested as an incident of the county's easement. Therefore, the present scope of the right-of-way is based on the uses to which the road was put in 1976, at which time FLPMA repealed the 1866 legislation but provided for continued recognition of existing rights-of-way through federal lands. The court holds that the proposed improvements, including constructing a two-lane gravel road with adjoining culverts and ditches and several minor deviations from the established roadway, is reasonable and necessary to further those uses, which include the promotion of the economic development of the area.

The court holds that BLM's failure to regulate the road does not violate FLPMA §603, which requires BLM to protect WSAs against impairment of their suitability for wilderness designation and to prevent their unnecessary and undue degradation. BLM's regulations specifically exempt the reasonable exercise of valid existing rights from the nonimpairment standard; the court holds that this exemption is reasonable, since it mirrors a similar exemption for mining, grazing, and mineral leasing in FLPMA §603(c). The court holds that the county must apply to BLM for a permit to move the road at one point, since improvement of the road in its present position would unreasonably or unduly degrade the adjacent WSA. The effect of the court's order is not to allow BLM to deny the permit or impose conditions that would prevent the county from improving the road, but rather is to require BLM to specify where the road should be located.

The court holds that BLMhs actions to ensure that the county's construction proposal did not exceed the scope of the right-of-way did not constitute a major federal action triggering the requirements of the National Environmental Policy Act (NEPA). However, the court holds that a major federal action arises out of BLM's duty to protect the WSAs from unnecessary or undue degradation. BLM's reluctance to exercise its regulatory authorities under FLPMA is irrelevant; because the protection of WSAs is a mandatory duty, even BLM's inaction requires compliance with NEPA. A finding of major federal action in this case would not require BLM to federalize all local road projects, regardless of size or impact. BLM's control over such projects is limited to those that affect WSAs, and many projects that do affect WSAs may not be of large enough scope to require NEPA compliance. The court overturns the district court's holding that the project would not have a significant effect on the environment and therefore did not require the preparation of an EA, holding that plaintiff did not waive its challenge to that error by requesting below that the district court serve as finder of fact of all matters in the case. The court holds that the lower court's action unlawfully usurped BLM's dominion over the determination of significant effect, since courts lack the expertise and, often, an adequate record with which to make such a decision. Assumption of the decision process by the courts also circumvents NEPA's express policy to involve other agencies and the public in the study process. The court also holds that neither an earlier EA by the county of several alternate construction proposals, nor other studies of road improvement plans, satisfies the requirement of an EA for the present proposal. All of these studies have insufficiently detailed discussions of environmental impacts and fail to demonstrate an adequately close fit with the present proposal. The court declines to synthesize the studies and find that in the aggregate they are the functional equivalent of an EA for the present proposal, because to do so would inappropriately take over the agency's environmental assessment function. Finally, the court rejects the county's request for damages for wrongful delay of its project and for interference with contractual relations, since plaintiffs' legal challenge has been in good faith.

The dissent would not require BLM to perform an EA, since plaintiffs agreed that the district court would serve as finder of fact and because there is no major federal action in this case.

[The district court's opinion is published at 18 ELR 20715.]

Counsel for Plaintiffs-Appellants
Lori Potter
Sierra Club Legal Defense Fund, Inc.
Symes Bldg., 820 16th St., Suite 514, Denver CO 80202
(303) 863-9898

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

Counsel for State Defendant-Appellee
Ronald W. Thompson
Thompson, Hughes & Reber
148 E. Tabernacle St., George UT 84770
(801) 673-4892

Before LOGAN and SEYMOUR, Circuit Judges, and BARRETT, Senior Circuit Judge.