Draft Southeaster n Oregon Resource 

Management Plan Amendment and 

Environmental Impact Statement 

Appendix A

2010 Settlement 

Agreement 
 

 

 

 

 

The 2010 Settlement Agreement (full text provided below) requires the BLM to manage lands with wilderness 

characteristics until the BLM completes an amendment to the SEORMP. Provisions 1–13 in the 2010 Settlement 

Agreement provide the Scope of the Agreement and Definitions. The Agreement also provides Specific Provisions 

to incorporate into an amendment to the SEORMP and through an Environmental Impact Statement (EIS) analysis. 

Table A-1 shows the Specific Provisions that are incorporated into the alternatives and analyzed in this EIS. 

Table A-1. Summary of specific provisions required by the 2010 Settlement Agreement for analysis and the 

alternatives in which they are incorporated. 

Summary of Specific Provision Alternative in which Provision is Incorporated 

No Action A B C D 

Provision 14b – Consider the updated wilderness 

characteristics inventory in an RMP Amendment. 

Provision 14c and 26b – Analyze a full range of 

alternatives for off-highway vehicle (OHV). 

Provision 21 – Consider citizen-provided 

information regarding wilderness characteristics. 

Provision 26c – Close public lands to motorized 

vehicle use in lands with wilderness characteristics 

and Wilderness Study Areas (WSA). 

Provision 26c – Designates all lands with wilderness 

characteristics and all WSA as limited to existing 

roads. 

Provision 27 – Close allotments or pastures for the 

duration of the plan [RMP] where existing grazing 

management practices are significant causal factors 

in failing to achieve the standards for rangeland 

health. 

Provision 27 – Temporarily close allotments or 

pastures where existing grazing management 

practices are determined to be significant causal 

factors in failing to achieve standards for rangeland 

health. Temporary closure may be lifted when 

Standards show progress. 

Provision 28 – Analyze two processes that describe 

conditions under which the BLM would no longer 

authorize livestock grazing when a grazing permit is 

voluntarily relinquished. 

Provision 29(2) 1 – Receipt of a voluntarily 

relinquished permit that overlaps National 

Conservation Lands (NCL) OR other identified 

special management areas, grazing would be closed 

for the duration of the plan [RMP]. 

Provision 29(1) – Upon receipt of a voluntarily 

relinquished permit that overlaps National 

Conservation Lands (NCL), grazing would be closed 

for the duration of the plan [RMP]. 

Provision 30 – Further defines the Voluntary 

Relinquishment Process under Provision 29 for 

Individual (one permittee) and common (multiple 

permittees) allotments. 

Note: Shading indicates the alternative addresses the 2010 Settlement Agreement provision. 

1 Current BLM Policy (WO IM 2013-184) requires the BLM to accept any grazing permit that is voluntarily 

relinquished. As required by the 2010 Settlement Agreement, Alternatives B and D analyze processes that would 

result in grazing closure following receipt of a permit relinquishment. 

A-1 
 

 

 

UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 

Docket No. 05-35931 

OREGON NATURAL DESERT ASSOCIATION, et al. 

Plaintiff-Appellants, 

v. 

BUREAU OF LAND MANAGEMENT, et al. 

Defendant-Appellees, 

On Appeal From the 

United States District Court for the 

District of Oregon Pursuant to 

28 U.S.C. § 1291 

JOINT MOTION REQUESTING 

AMENDMENT OF OPINION AND REMAND 

PETER M. LACY (“MAC”) DAVID C. SHILTON 

Oregon Natural Desert Association Attorney, Appellate Section 

917 SW Oak Street, Suite 408 Environment & Natural Res. Div. 

Portland, OR 97205 U.S. Department of Justice 

(503) 525-0193 P.O. Box 23795, 

lacy@onda.org L’Enfant Plaza Station 

Washington, D.C. 20026 

Attorney for Appellants (202) 514-5580 

Attorney for Appellees 

A-2
 

 

 

 

 

 

Pursuant to Fed. R. App. P. 27, appellants Oregon Natural Desert 

Association, et al. (“ONDA”), and appellees Bureau of Land Management, et al. 

(“BLM”), hereby request amendment of this Court’s opinion dated July 14, 2008 

and request the Court to then remand to the district court in order to effectuate the 

parties’ settlement agreement as described below. In support of this request, the 

parties state as follows: 

1. This Court issued a decision in this appeal on July 14, 2008. On 

August 28, 2008, BLM filed a petition for panel rehearing. BLM’s petition for 

panel rehearing was limited to the scope of the remand to the agency, and did not 

seek panel rehearing on the merits. On September 8, 2008, the panel requested 

appellants to respond. ONDA filed its response on October 1, 2008. 

2. On November 13, 2008, the parties moved the Court to stay 

proceedings while they attempted to settle the case, including the issues raised in 

BLM’s petition for panel rehearing, through mediation with the aid of a Ninth 

Circuit Mediator. The Court granted that motion by order dated November 17, 

2008. 

3. Now, the parties have reached a final settlement agreement, attached 

to this motion as “Attachment A.” Accordingly, and pursuant to their agreement, 

the parties ask the Court to amend the July 14, 2008 opinion as set forth in the 

attached proposed order (“Attachment B”). 

A-3
 

 

 

 

4. The proposed order would amend the Court’s opinion in two respects. 

First, it would remove references in the opinion to vacating or setting aside the 

Record of Decision (“ROD”) for the Southeastern Oregon Resource Management 

Plan. See Or. Natural Desert Ass’n v. Bureau of Land Mgmt., 531 F.3d 1114, 1143 

& 1145 (9th Cir. 2008). This would enable key provisions of the settlement 

agreement to function. Those provisions direct that BLM shall initiate resource 

management plan (“RMP”) amendments for the Southeastern Oregon RMP, as 

well as one other RMP that was challenged in a separate lawsuit. The settlement 

agreement also provides that during the interim period while BLM prepares its 

amendment and complies with its obligations under NEPA, BLM may, pursuant to 

the settlement agreement, continue to manage the lands under the direction of the 

ROD for the Southeastern Oregon RMP until BLM completes the amendment for 

the RMP. Second, it would amend the opinion to limit the remand to the district 

court and would remove references to a further remand by the district court to the 

BLM for the reasons stated above. 

5. If this motion is granted, BLM’s petition for rehearing would be 

rendered moot, and can be denied as such. After this Court files the requested 

amended decision and the mandate issues, jurisdiction would return to the district 

court. As set out in the settlement agreement, the parties would then file a motion 

asking the district court to incorporate the terms of the settlement agreement in the 

dismissal order and dismiss the case, while retaining jurisdiction for the sole 

purpose of enforcing the settlement agreement. 

A-4
 

______________________________ ______________________________ 

______________________________ 

For the foregoing reasons, the parties submit that this joint motion should be 

granted. DATED: June 9, 2010 

Respectfully submitted, 

PETER M. LACY (“MAC”) 

Oregon Natural Desert Association 

Attorney for Appellants 

DAVID C. SHILTON 

Attorney, Appellate Section 

Environment & Natural Res. Div. 

U.S. Department of Justice 

Attorney for Appellees 

CERTIFICATE OF SERVICE 

I hereby certify that on June 9, 2010, I electronically filed the foregoing Joint 

Motion with the Clerk of the Court for the United States Court of Appeals for the 

Ninth Circuit using the appellate CM/ECF system. 

Participants in the case who are registered CM/ECF users will be served by the 

appellate CM/ECF system. 

Peter M. Lacy 

A-5
 

 

 

 

 

 

SETTLEMENT AGREEMENT 

WHEREAS, Plaintiffs/Appellants, Oregon Natural Desert Association, the Committee 

for the High Desert, and Western Watersheds Project (collectively, ONDA), and the Bureau of 

Land Management (BLM) have litigated, through the Ninth Circuit Court of Appeals, the BLM’s 

Southeastern Oregon Resource Management Plan (RMP) in ONDA v. BLM, No. 05-35931 (9th 

Cir.). The appellate court ruled that wilderness characteristics are among the resources the BLM 

can manage under the Federal Land Policy and Management Act, that the BLM must address 

whether and to what extent wilderness values are present in the planning area outside of 

Wilderness Study Areas (WSA), and if so, how the RMP should treat land with such values. 

Moreover, according to the court’s decision, the BLM must consider closures of significant 

portions of the land it manages, including lands with wilderness values, to off-road vehicles 

(ORV). The court did not reach other issues raised by plaintiffs. The court vacated the Record of 

Decision (ROD) and remanded the case to the BLM. The BLM filed a petition for panel 

rehearing to seek reconsideration of the court’s remedy barring implementation of the RMP. The 

matter has been stayed during settlement negotiations; 

WHEREAS, Plaintiff/Appellant, Oregon Natural Desert Association, the Oregon Natural 

Resources Council Fund, and Northwest Environmental Defense Center (collectively, ONDA) 

and the BLM have litigated, in the District Court of Oregon, the BLM’s Lakeview RMP .The 

district court upheld the Lakeview RMP against all challenges. Plaintiffs appealed that decision 

to the Ninth Circuit Court of Appeals. The appeal, ONDA v. Gammon, No. 07-35728 (9th Cir.), 

has been stayed pending resolution of ONDA v. BLM, No. 05-35931 (9th Cir.) and then to allow 

for settlement negotiations; 

WHEREAS, the parties to these actions, the BLM and ONDA, hereby agree to the 

following Settlement Agreement (Agreement) to resolve these actions informally, solely as a 

compromise, and to avoid the need for further litigation before the courts; 

NOW THEREFORE, the parties agree to settlement in this manner, with terms and 

conditions as follows: 

I. SCOPE OF AGREEMENT 

1. This Agreement shall constitute a complete and final settlement of all 

plaintiffs/appellants’ claims alleged in the above-described cases against defendants. 

2. This Agreement in no way affects or relieves any party of its responsibility to 

comply with any applicable federal, state, and local law or regulation. 

3. This Agreement in no way affects the rights of the United States as against any 

person or entity not a party thereto. 

4. This Agreement is for the purpose of litigation and nothing in this Agreement 

shall be deemed a precedent or constitute an admission of fact or law by any party. This 

ATTACHMENT A 

A-6
 

 

Agreement shall not be used or admitted in any proceeding against a party over the objection of 

that party. 

5. It is hereby expressly understood and agreed that this Agreement was jointly 

drafted by the parties. Accordingly, the parties hereby agree that any and all rules of construction 

to the effect that ambiguity is construed against the drafting party shall be inapplicable in any 

dispute concerning the terms, meaning, or interpretation of this Agreement. 

6. This Agreement shall be governed by and construed under federal law. 

7. Nothing in this Agreement shall be construed to make any other person or entity 

not executing this Agreement a third-party beneficiary to this Agreement. 

8. This Agreement contains all of the agreements between the parties, and is 

intended to be and is the final and sole agreement between the parties concerning the complete 

and final resolution of ONDA’s causes of action in these cases. The parties agree that any other 

prior or contemporaneous representations or understandings not explicitly contained in this 

Agreement, whether written or oral, are of no further legal or equitable force or effect. Any 

subsequent modifications to this Agreement must be in writing, and must be signed and executed 

by the parties. 

II. DEFINITIONS 

9. “Wilderness character” describes a unit of roadless BLM-administered land that is 

at least five thousand acres in size, or is of sufficient size as to make practicable its preservation 

and use in an unimpaired condition, and that possesses the minimum wilderness characteristics, 

as enumerated by the Wilderness Act, 16 U.S.C. § 1131(c)(1)-(4), and incorporated into the 

Federal Land Policy and Management Act (FLPMA) and the BLM’s Land Use Planning 

Handbook (H-1601-1)—1) naturalness (the area generally appears to be affected primarily by the 

forces of nature, with the imprint of man’s work substantially unnoticeable), and 2) outstanding 

opportunities for solitude or a primitive and unconfined type of recreation. 

10. “ONDA,” for purposes of this settlement only, includes the Oregon Natural 

Desert Association, the Committee for the High Desert, Western Watersheds Project, the Oregon 

Natural Resources Council Fund, and Northwest Environmental Defense Center. 

11. “Project” for purposes of this settlement only, is a newly proposed or 

unimplemented surface-disturbing activity, and specifically excludes the BLM’s authorization of 

livestock grazing. 

12. “Inventory update” for purposes of this settlement only, is limited to an update of 

resource information related to wilderness character by the BLM, pursuant to 43U.S.C. § 1711, 

for the planning areas. 

ATTACHMENT A 

A-7
 

 

 

 

 

 

III. SPECIFIC PROVISIONS 

13. The BLM shall initiate resource management plan (RMP) amendments for both 

the Southeastern Oregon and Lakeview RMPs. 

14. The two RMP amendments shall address, for each planning area, wilderness 

character, off-road vehicle (ORV) use, and grazing management. Specifically, the BLM shall a) 

complete inventory updates for the planning areas, b) consider information from the inventory 

updates in the “affected environment,” “alternatives,” and “analysis” sections of the NEPA 

documents supporting amendment of each plan; c) develop a full range of allocation alternatives 

with respect to ORV use, travel, and transportation, that includes both effects on, and protection 

of, wilderness character; and d) develop grazing management alternative(s) that provide for both 

voluntary grazing permit/lease relinquishment processes and the identification of areas no longer 

available for grazing use. 

15. Except for project limitations described in this Agreement, the BLM shall 

continue to manage under the direction of the RODs for the Southeastern Oregon and Lakeview 

RMPs until the BLM completes the amendment for each RMP. 

16. The BLM Oregon State Office agrees to place a high priority on these planning 

processes within its statewide budgeting process, and shall, contingent upon sufficient funding, 

complete the RMP amendments as quickly as practicable. 

17. The BLM Oregon State Office shall issue State Director Guidance for the 

preparation of the Southeastern Oregon and Lakeview RMP amendments that includes the 

direction to use information from inventory updates to support the amendments. 

18. Subject to valid existing rights, until it completes the RMP amendments, the BLM 

shall not implement any projects in the respective RMP planning areas that fall within either a) 

an inventory unit determined by BLM to possess wilderness character, where such action would 

be deemed by BLM to diminish the size or cause the entire BLM inventory unit to no longer 

meet the criteria for wilderness character, or b) a unit identified in ONDA’s April 1, 2005 or 

February 6, 2004 citizen inventory reports as having wilderness character, but where BLM has 

not yet completed its inventory update, where the action would be deemed by BLM to diminish 

the size or cause the entire ONDA inventory unit to no longer meet the criteria for wilderness 

character. 

19. Until the BLM has completed an RMP amendment, if a project is proposed or 

scheduled for implementation in either of the respective planning areas and would be in an area 

that BLM has found to possess wilderness character, the BLM will analyze the effects on 

wilderness character through each project’s NEPA process. Such analysis shall include an 

alternative that analyzes both mitigation and protection of any BLM-identified wilderness 

character that exists within the project area. Consistent with paragraph 18, until the BLM has 

completed an RMP amendment, the BLM shall not implement any project if its analysis 

determines that the effects of the project would cause an area with BLM-identified wilderness 

character to no longer meet the minimum wilderness character criteria. 

ATTACHMENT A 

A-8
 

 

 

 

 

20. Until the BLM has completed an RMP amendment, where the BLM has not 

completed its inventory update, the BLM shall update the inventory for units in areas affected by 

proposed new activity plans, leases, or other projects that may cause surface disturbance or result 

in a permanent development. Where inventory updates have already been completed, BLM will 

review information from any subsequent BLM field validation or photographic documentation of 

such areas for the possibility of new information that may warrant reconsideration of prior 

inventory conclusions. 

21. The BLM shall consider citizen-provided information regarding wilderness 

character when it conducts inventory updates or, where it has already completed such inventory 

updates, to determine whether such information warrants reassessing prior wilderness character 

inventories. 

22. Upon completion of the inventory updates, the BLM shall provide its findings 

regarding the presence or absence of wilderness character to those persons or entities that 

supplied the BLM information regarding wilderness character, or similar values, at least thirty 

days prior to finalizing any project proposals in the inventory unit analyzed. In addition, the 

BLM shall make its findings publicly available, at a minimum, upon request. 

23. To ensure maximum consistency among the BLM Districts and Field Offices, the 

BLM will follow up the “calibration” workshop it held for personnel involved in inventory 

updates with one or more field calibration sessions that shall be open to members of ONDA, any 

interested public, and possible invited experts. 

24. In the event the BLM Washington Office issues relevant national guidance 

pertaining to sections 201 and 202 of FLPMA prior to the BLM signing a Record of Decision for 

either the Lakeview or the Southeastern Oregon RMP amendments, the BLM agrees to adjust the 

relevant planning process to comport with such guidance, to the extent feasible. 

25. Corridor 7-24, established through BLM’s West Wide Energy Corridors Record 

of Decision, dated January 14, 2009, designating energy corridors in Oregon, shall be subject to 

the management direction adopted upon completion of the Lakeview and Southeastern Oregon 

RMP amendments. 

26. The BLM Oregon State Office shall issue State Director Guidance for the 

preparation of the Southeastern Oregon and Lakeview RMP amendments that provides 

consistent direction to both the Lakeview and Vale Districts regarding management of ORV, 

travel, and transportation. Such guidance shall include the following: 

a) the BLM shall complete inventory updates for the entire planning area prior to 

developing alternatives for and analyzing the effects of ORV, travel, and 

transportation management in the two RMP amendments; 

b) the BLM shall consider a full range of alternatives that varies amounts of areas falling 

within all three ORV allocation types (open, limited, and closed) based on a 

balancing of resource uses and values; 

ATTACHMENT A 

A-9
 

 

 

 

 

 

c) the BLM shall follow current BLM national guidance with respect to designating 

open, limited, and closed areas, pursuant to 43 C.F.R. §§ 8342.1 and 8342.2(a). The 

BLM shall consider an alternative designating existing wilderness study areas 

(WSAs) and non-WSA areas with BLM-identified wilderness character as limited to 

roads and trails existing either at the time the area became a WSA or when non-WSA 

lands were recognized as possessing wilderness character. In addition, the BLM shall 

consider an alternative that would designate WSAs and non-WSA areas with BLMidentified wilderness character as “closed” to ORV use. The RMP amendments may 

allow for the BLM to make future use designations for a WSA in the event it is 

released from study. 

27. The BLM shall consider an alternative in both the Lakeview and Southeastern 

Oregon RMP amendments that will close allotments or pastures either for the duration of the 

plan or temporarily where existing grazing management practices or levels of grazing use on 

public lands are significant factors in the allotment or pasture failing to achieve the standards for 

rangeland health. 

28. The BLM Oregon State Office shall issue State Director Guidance for the 

preparation of the Southeastern Oregon and Lakeview RMP amendments that provides 

consistent direction to both the Lakeview and Vale Districts, including the direction to analyze, 

through at least two alternatives, a process that allows for and describes conditions under which, 

for the duration of each plan, the BLM would no longer authorize livestock grazing within a 

grazing allotment, or portions thereof, when either a grazing permit or lease is voluntarily 

relinquished. 

29. The two RMP amendments each shall include at least two alternatives that require 

the BLM to accept the voluntary relinquishment of any valid existing permit or lease authorizing 

livestock grazing on public land, as set out below. In particular, the alternatives analysis shall 

consider the voluntary relinquishment of permits or leases (or portions thereof) located on or 

within public lands within (1) the National Landscape Conservation System (NLCS) alone and 

(2) the NLCS in combination with public lands within Areas of Critical Environmental Concern, 

as that term is defined by the FLPMA, designated Research Natural Areas, as that term is 

referred to in BLM Manual 1613, Areas of Critical Environmental Concern, and BLM’s 

planning handbook (H-1601-1, Appendix C, III.B.4), areas that BLM has determined have 

wilderness character, and areas with designated critical habitat for a species listed under the 

Endangered Species Act. 

30. 

a) The relinquishment structure that BLM will analyze in the alternatives outlined in 

paragraph 29 for allotments with one permittee per allotment will provide that once a 

permit or lease has been completely relinquished, the BLM shall terminate the permit 

or lease, or portion thereof, and will ensure an end to livestock grazing on the public 

lands covered by the permit or lease and so relinquished, for the duration of the plan. 

b) For allotments with one permittee per allotment, the alternatives will provide that 

once a permit or lease has been partially relinquished, the BLM shall appropriately 

ATTACHMENT A 

A-10
 

modify the permit or lease and ensure that livestock grazing is either eliminated or 

appropriately reduced on the public lands covered by the permit and subject to the 

partial relinquishment, for the duration of the plan. With respect to partial 

relinquishments, BLM will not allow livestock grazing to exceed the permitted use 

established for these public lands after the partial relinquishment, for the duration of 

the plan. 

c) Due to the complexities inherent with relinquishments on common allotments, BLM 

will address the structure of such relinquishments for the alternatives during the 

alternatives development process under NEPA. 

31. Nothing in this Agreement or the alternatives to be analyzed shall preclude the 

BLM from accepting the relinquishment of any valid existing permit or lease outside areas 

identified for closure, at the discretion of the relevant District Manager or Field Manager. 

IV. SAVINGS PROVISIONS 

32. Nothing in the terms of this Agreement shall be construed to limit or modify the 

authority accorded to the BLM by FLPMA, any other statute or regulation, or by general 

principles of administrative law, both to update public land management policy, and to meet 

FLPMA’s public lands management objectives over time. 

33. The obligations imposed on the BLM under this Agreement can only be 

undertaken using appropriated funds. No provision of this Agreement shall be interpreted as or 

constitute a commitment or requirement that the BLM or the United States obligate or pay funds 

in contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any other applicable federal 

statute. 

V. EFFECTIVENESS OF AGREEMENT, REMEDIES, RELEASES, AND 

TERMINATION 

34. This Agreement and the obligations under it become effective only upon full 

completion of all of the following events: 1) pursuant to the parties’ joint motion in ONDA v. 

BLM, No. 05-35931, the Ninth Circuit issues an amended decision in that case which omits the 

directive to BLM to set aside the Record of Decision for the Southeastern Oregon RMP and 

permits BLM to continue to manage under the direction of the Record of Decision for the 

Southeastern Oregon RMP until the BLM completes the amendment for that RMP, as specified 

in paragraph 15, 2) pursuant to the parties’ joint motion in ONDA v. BLM, No. 05-35931, the 

Ninth Circuit issues an order that remands the case back to the district court, 3) pursuant to the 

parties’ joint motion, the district court in 05-35931 issues an order that incorporates the terms of 

this Agreement in the dismissal order and dismisses the case, while retaining jurisdiction for the 

sole purpose of enforcing this Agreement, 4) pursuant to the parties’ stipulation in ONDA v. 

Gammon, No. 07-35728, the Ninth Circuit issues an order granting the stipulated dismissal of 

that appeal without prejudice to reinstatement, and 5) pursuant to the parties’ joint motion, the 

district court in 07-35728 issues an order that incorporates the terms of this Agreement in the 

ATTACHMENT A 

A-11
 

 

 

dismissal order and dismisses the case, while retaining jurisdiction for the sole purpose of 

enforcing this Agreement. 

35. The exclusive remedy for claims of material breach of this agreement is a motion

to enforce the agreement, brought in the appropriate district court. However, at least 30 days

prior to bringing any action to enforce this Agreement, the party contemplating the action must

bring its dispute to the attention of the other party, in writing, and both parties must make a good 

faith effort to resolve the dispute informally within 30 days thereafter. If the dispute cannot be

resolved in this manner, either party may invoke the retained jurisdiction of the district court by

filing an appropriate pleading before one of the district court judges. In no case shall a party file 

such an application for relief before both district court judges. The parties shall make best

efforts to agree as to which district court judge should consider the particular dispute. In the

absence of agreement, the question of which judge should consider the dispute shall be submitted 

to the district court for its determination. The parties understand that the district court’s review

of any action related to this settlement agreement will be governed by any relevant standards of

review set forth in the Administrative Procedure Act, 5 U.S.C. § 551 et seq., for judicial review

of federal agency actions. The parties agree not to seek to invoke the contempt powers of the

district court in aid of enforcement of this Agreement. Consistent with paragraph 37 of this

Agreement, any challenge to the validity of the RODs for the Plan Amendments, including any

challenge to the sufficiency of the NEPA analyses completed, shall be made in a separate action

subject to all available defenses. 

36. ONDA hereby agrees that this settlement is in full satisfaction of all of its claims

in ONDA v. BLM ONDA v. Gammon and , and when it becomes effective pursuant to paragraph 

34 of this Agreement shall serve as a release of all claims in both cases. ONDA further releases,

discharges, and covenants not to assert (by way of the commencement of an action, the joinder of

BLM in an existing action, or in any other fashion) any and all claims, causes of action, suits or

demands of any kind whatsoever in law or in equity which they may have had, or may hereafter

have, against the United States, including the BLM, based upon matters concerning either the

Southeastern Oregon or Lakeview RMP, which were asserted or could have been asserted by

Plaintiffs in the complaints filed in ONDA v. BLM, No. 05-35931 (9th ONDA v. 

Gammon th 

 Cir.), or 

, No. 07-35728 (9 Cir.), respectively. 

37. The parties’ obligations under this Agreement shall terminate when the BLM

signs RODs for both the Southeastern Oregon RMP amendment and the Lakeview RMP

amendment. More specifically, the BLM’s obligations, as articulated in this Agreement with

respect to the Southeastern Oregon planning area, shall terminate when the BLM signs a ROD

for the Southeastern Oregon RMP amendment, and the BLM’s obligations, as articulated in this

Agreement with respect to the Lakeview planning area, shall terminate when the BLM signs a 

ROD for the Lakeview RMP amendment. 

VI. ATTORNEY FEES AND COSTS 

38. ONDA claims entitlement to attorneys fees and expenses pursuant to the Equal 

Access to Justice Act, 28 U.S.C. § 2412(d) et seq. Without any admission of fact or law, BLM 

agrees to settle ONDA’s claim for attorneys fees and expenses in both ONDA v. BLM and 

ONDA v. Gammon, in order to avoid further litigation. In settlement of these claims, the BLM 

shall pay $260,956.70 to ONDA by electronic funds transfer. 

ATTACHMENT A 

A-12
 

 

 

ONDA agrees to accept payment of $260,956.70 in full satisfaction of any and all claims for 

attorneys fees, costs and expenses to which ONDA asserts that it is entitled in these matters. 

Provided, however, that ONDA is not barred by this or any other provision of this Agreement 

from seeking attorney fees, costs and expenses incurred to enforce the terms of this Agreement, 

subject, however, to all available defenses, including that ONDA is not entitled to attorneys fees, 

costs or expenses related to enforcement of the Agreement. 

Following the district courts’ orders dismissing the cases, as specified in paragraph 34, ONDA’s 

counsel shall provide the following information to counsel for BLM: 

Bank name 

Bank address 

Routing number 

Account number 

Name of Account 

Federal Taxpayer Identification number 

BLM will immediately initiate the process for securing payment of the above referenced sum and 

BLM’s counsel will provide documentation (via letter or email) to ONDA’s counsel advising of 

the initiation of that process. The BLM shall make its best effort to transmit payment to ONDA 

no later than thirty days after ONDA provides the information listed above. The BLM will 

provide notice by email to ONDA’s counsel that the electronic funds transfer has been made. 

Payment of this sum by the BLM shall constitute satisfaction in full of any claim for costs of suit 

or attorney fees arising out of these actions. 

VII. RECIPIENTS OF NOTIFICATION 

39. Any notices required or provided for by this Agreement shall be in writing, 

effective upon receipt, and sent to the following: 

For Plaintiffs/Appellants: 

Peter M. Lacy 

Senior Attorney 

Oregon Natural Desert Association 

917 SW Oak Street, Suite 408 

Portland, OR 97205 

lacy@onda.org 

Laurence J. Lucas 

P.O. Box 1342 Boise, ID 83701 

llucas@advocateswest.org 

ATTACHMENT A 

A-13
-�e �e pe . he

State Director Oregon/Washington 

Brent Fenty 

Oregon Natural Desert A�Jclitp"• on 

For Defendants/Appellees: 

David C. Shilton 

Attorney, Appellate Section 

United States Department of Justice 

Environment & Natural Resources Division 

P.O. Box 23795 

Washington, DC 20026-3795 

David.Shilton@usdoj.gov 

Stephen J. Odell 

Assistant U.S. Attorney 

1000 S.W. Third Avenue, Suite 600 

Portland, OR 97204-2902 

Steve.odell@usdoj.gov 

Michael Schoessler 

Department of the Interior 

Pacific Northwest Office of the Regional Solicitor 

805 SW Broadway, Suite 600 

Portland, OR 97205 

Michael.Schoessler@sol.doi.gov 

Or such other person as either party may subsequently identify in writing to the other party. 

VIIl. SIGNATURE OF PARTIES 

40.e The undersigned representatives of each party certify that they are fully

authorized to consent to the terms and conditions of this Agreement. Signature on a counterpart 

or authorization of an electronic signature shallesti te a vale si i re. 

e

Date: <c.-'l-l"C:) 

s/ Jon Marvel 

Jon Marvel 

Western Watersheds Project 

A-14
s/ Steve Jakubowics 

Steve Jakubowics 

Committee for the High Desert 

s/ Doug Heiken 

Doug Heiken 

Oregon Wild 

(formerly Oregon Natural Resources Council) 

s/ Mark Riskedahl 

Mark Riskedahl 

Northwest Environmental Defense Center 

A-15
 

 

 

 

 

 

PROPOSED ORDER 

The parties’ Joint Motion to Request Amendment of Opinion and Remand is 

GRANTED. 

The opinion of the Court in this case, Oregon Natural Desert Association v. 

Bureau of Land Management, 531 F.3d 1114 (9th Cir. 2008), is amended as 

follows. In light of this disposition, the appellees’ Petition for Rehearing is denied 

as moot. 

In the second paragraph of the opinion, 531 F.3d at 1116, replace the last sentence 

of that paragraph with the following: 

“We reverse and remand to the district court for further proceedings.” 

In Section II.B.5 of the Court’s opinion, 531 F.3d at 1143, replace the last 

paragraph of that section with the following: 

“BLM must address in some manner in its revised EIS whether, and to what extent, 

wilderness values are now present in the planning area outside of existing WSAs 

and, if so, how the Plan should treat land with such values. We prescribe no 

particular methodology for that consideration. The BLM must, however, do more 

than simply assert that it need not consider wilderness values because of the 

completion of the § 1782 process, as it did in the present EIS. We therefore remand 

to the district court.” 

In Section III of the Court’s opinion, 531 F.3d at 1145, replace the existing two 

paragraphs with the following single paragraph: 

“The EIS violated NEPA in the ways we have stated. Having addressed the 

problems we have identified, the BLM may decide to make different choices. 

NEPA is not a paper exercise, and new analyses may point in new directions. As a 

result, although ONDA also raises concerns regarding alleged substantive and 

procedural flaws within the Plan, we do not reach those issues today. The problems 

it identifies may never arise once the BLM has had a chance to see the choices 

before it with fresh eyes. 

REVERSED AND REMANDED.” 

IT IS SO ORDERED. 

ATTACHMENT B 

A-16