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NINTH CIRCUIT COURT OF APPEALS AFFIRMS BLM’S PROPOSAL TO EXPAND ACCESS FOR OFF-ROAD VEHICLES IN IMPERIAL SAND DUNES SPECIAL RECREATION MANAGEMENT AREA


In Imperial County, just north of the Mexican border, lies the Imperial Sand Dunes Planning Area, a 227,000-acre tract of desert, of which 214,930 acres is managed by the Bureau of Land Management (BLM). This swath of land is home to the Algodones Dunes, the largest active sand dune system in the United States. A 138,111-acre portion of the Planning Area, designated as the Imperial Sand Dunes Special Recreation Management Area (Dunes), is set aside for the protection of plants and wildlife, as well as for outdoor recreation. The Dunes attract over one million visitors annually, especially off-road vehicle enthusiasts. In Center for Biological Diversity v. Bureau of Land Management, 2016 U.S. App. LEXIS 14949, the Ninth Circuit Court of Appeals reviewed BLM’s proposal to expand access for off-road vehicle recreation in the Dunes (Proposal).

Center for Biological Diversity (CBD) contended that the plain language of the Endangered Species Act requires an Incidental Take Statement for threatened plants, rather than just fish and wildlife. In reviewing an agency’s interpretation of a statute it is charged with administering, the Court applied the two-step statute interpretation framework set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984) 467 U.S. 837 (Chevron): (1) whether Congress has spoken on the issue in the statute; and (2) if the statute is ambiguous with respect to the issue, whether the agency’s interpretation is reasonable. The Court determined that the Endangered Species Act on its face does not require Biological Opinions to contain Incidental Take Statements for threatened or endangered plants.  The Court did not proceed to the second step of the Chevron test, but it noted that its reading of the Endangered Species Act was consistent with the USFWS’ longstanding interpretation of the Incidental Take provision.

CBD also claimed that BLM’s conclusion that implementation of its Proposal would not increase ozone emissions was arbitrary and capricious and violated the Clean Air Act, the Federal Land Policy and Management Act, the National Environmental Policy Act, and the Administrative Procedure Act. Specifically, CBD took issue with BLM’s assumptions regarding the number of individuals who will visit the Dunes and how an average visitor will spend their time. The Court noted that BLM’s assumptions were entitled to deference so long as they are supported by “substantial evidence,” and found that the administrative record demonstrated that BLM “considered the relevant factors and articulated a rational connection between the facts found and the choices made.” Accordingly, the Court concluded that CBD had failed to demonstrate that BLM’s emissions analysis was arbitrary and capricious under this deferential standard.

Key Point: The Endangered Species Act does not require an Incidental Take Statement for threatened or endangered plants.



dateSeptember 1st, 2016byby


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