ELR Citation: ELR 20432
No(s). 90-4091 (10th Cir. Nov 18, 1991)

The court holds that the Department of the Interior's Interior Board of Land Appeal's (IBLA's) decision upholding the Bureau of Land Management's (BLM's) finding of no significant impact (FONSI) under the National Environmental Policy Act (NEPA) for a Utah county's plan to improve a road segment running between two wilderness study areas (WSAs) was not arbitrary and capricious. The court previously reversed the district court's ruling that BLM had complied with NEPA's procedural requirements and remanded to BLM for an environmental assessment (EA) specifically limited to consideration of the impact of the proposed road changes on the WSAs under §603(c) of the Federal Land Policy Management Act (FLPMA). However, on remand BLM considered environmental impacts beyond those that might arise through implementation of the county plan, reasoning that it could best evaluate all anticipated road improvements in the county's long-range plans. BLM's decision to expand the scope of the EA resulted in two FONSIs, one for the county proposal and one for another related segment, and plaintiff appealed to the IBLA. The IBLA then accepted BLM's FONSI for the county's proposal, and set aside the remainder of the decision as outside the remand.

The court first holds that the IBLA properly and clearly divided BLM consideration into two separate and distinct matters. Although BLM could not on remand expand the scope of the litigation by making a FONSI as to a second segment of the road, there was no reason why BLM could not consider at the same time other matters that were interesting to it but were of no significance to the litigation. The court next holds that it must apply the arbitrary and capricious standard in reviewing the district court's decision to affirm the IBLA, rather than a reasonableness standard. First, this review is of factual matters derived from the limited scope of BLM action. Second, the U.S. Supreme Court decision in Marsh v. Oregon Natural Resources Council, 19 ELR 20749, decided after the Tenth Circuit's first ruling in this case, rejected the Ninth Circuit's use of a reasonableness test to review an agency's decision to prepare a supplemental environmental impact statement (EIS).

The court next declines plaintiff's request to ignore the specific limitations mandated on remand and expand the case and scope of review to include the entire road. The court's earlier remand limited BLM's NEPA responsibilities, and FLPMA §603 limits the agency's authority under NEPA to reviewing the county's road improvement projects that affect WSAs. Although the county submitted a proposal to have BLM consider the entire road, the proposal was requested by BLM as part of its decision to expand the hearings, and is not a factor on appeal. Moreover, the court holds that the IBLA's conclusion that the county proposal would not cause any unnecessary or undue degradation of any WSA that would give rise to a significant impact was proper, and no EIS was required. Although the IBLA did not discuss BLM's expanded finding that paving would be a less degrading alternative than the gravel proposed in the county's plan, the IBLA properly found that the paving alternative was outside the scope of the county proposal and the judicial remand. BLM's final EA thoroughly considered environmental impacts and unavoidable adverse effects, even though it found that portions of the WSAs adjacent to the road segment involved in the county proposal would lose wilderness status with the improvement of the road. Finally, the court holds that the IBLA's decision against conducting additional evidentiary review on allegations that BLM officials exerted external pressure to perform the EA based on improper considerations was not arbitrary and capricious.

[Previous decisions in this case are published at 18 ELR 20715 and 21237, and 20 ELR 21301.]

Counsel for Plaintiffs-Appellants
Wayne G. Petty
Moyle & Draper
600 Desert Plaza, No. 15 E. 1st S., Salt Lake City UT 84111
(801) 521-0250

Lori Potter
Sierra Club Legal Defense Fund
1631 Glenarm Pl., Ste. 300, Denver CO 80202
(303) 623-9466

Counsel for Defendants-Appellees
Robert L. Klarquist, Edward J. Shawaker
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Dee V. Benson, U.S. Attorney; Joseph W. Anderson, Ass't U.S. Attorney
U.S. Courthouse, 350 S. Main St., Rm. 476, Salt Lake City UT 84101
(801) 524-5682

Before TACHA and SETH, Circuit Judges, and BRATTON, District Judge.^*