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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

SODA MOUNTAIN WILDERNESS

COUNCIL and KLAMATH FOREST

ALLIANCE,

NO. CIV. S-04-2583 LKK/CMK

Plaintiffs,

v. O R D E R

GAIL NORTON, et al.,

Defendants.

 /

Plaintiffs, the Soda Mountain Wilderness Council (SMWC) and

the Klamath Forest Alliance (KFA), have brought suit against the

Bureau of Land Management (BLM) (and its relevant officials and

parent agency). They allege that the agency has violated the

National Environmental Policy Act (NEPA), the Administrative

Procedure Act (APA), and the Federal Land Policy and Management Act

(FLPMA). The suit arises out of a proposed amendment to the land

management plan for the Redding Resource Area concerning

acquisitions of land for the Horshoe Ranch Wildlife Area (HRWA).

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The parties have both filed cross-motions for summary judgment and

submitted an additional round of briefing at the court’s request

on the question of standing. 

I.

FACTS

A. THE HORSESHOE RANCH WILDLIFE AREA

In 1977 the California Department of Fish and Game (CDF&G)

bought the B.B. Miller cattle ranch to protect the principle

wintering grounds of the Jenny Creek black-tail deer herd. Excerpt

of Record (ER) 013; Administrative Record (AR) 00112. This action

established the Horseshoe Ranch Wildlife Area as a public deer

habitat preserve. It is located just south of the CaliforniaOregon border, east of Interstate 5 and north of the Klamath River.

Id. Miller’s land was checkerboarded alongside one-mile square

sections of public land managed by the Bureau of Land Management.

Id.; Map at ER 030; AR 00136. Since then, BLM and the CDF&G have

co-managed the checkerboarded ranch as a Wildlife Area. CDF&G has

taken the leadership role in wildlife management pursuant to a 1983

Memorandum of Understanding between the two agencies. ER 013; AR

00112, 05288-05319. CDF&G has managed primarily to enhance and

protect deer winter range habitat, and provide public access for

hunting and other recreational pursuits. Id.

At the time of the original purchase, only the lands outlined

on Map 3 of the Final EA were fenced as a part of the B.B. Miller

Ranch. ER 013, AR 00112; Map at ER 030, AR 00136. Sections 22 and

34, located on the western boundary of the fence, were already in

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1 It appears that the eastern half of section 21 may not have

been a formal part of the HRWA boundary although it was effectively

treated as a portion of the boundary by being managed that way.

See AR 00112 and 00115. 

3

BLM ownership but were used for grazing by other ranchers. ER 013,

AR 00112. In 1983 the CDF&G and BLM completed a Habitat Management

Plan that included Sections 22 and 34 as part of the HRWA. Id.

Although outside the fenced boundaries, the CDF&G has administered

the HRWA with sections 22 and 34 considered part of the wildlife

area. Id.

In 1992, the eastern half of section 21, T. 48N., R.6W.,

contiguous with section 22, was acquired by a land exchange

consistent with the existing Management Framework Plan, with the

intention of including it in the HRWA. Id. The final

configuration of land being actively managed as a wildlife area by

the CDF&G in 1992 was the original ranch plus one half of Sections

211 and all of Sections 22, and 34. Id.

B. THE 1993 REDDING RESOURCE AREA MANAGEMENT PLAN

In June 1993, the Redding Resource Area BLM, issued a Record

of Decision (1993 ROD) for the Redding Resource Management Plan

(RRMP). ER 070. The new Redding Resource Management Plan (1993

RRMP), declared itself a “compact with the public” resulting from

a “four year process of collaboration with the public, State

agencies, other Federal agencies, and, especially county

governments and local organizations.” ER 070. One goal of the

plan was to “dramatically shift” the BLM land ownership pattern

“from more than 1,000 scattered parcels to less than twenty five

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large aggregates of accessible and useful public lands” with

“outstanding recreational opportunities and unusual or imperiled

biological resources.” Id. One of the specific objectives of the

1993 RRMP was to “double the size” of the HRWA “to benefit deer.”

ER 071. This would be accomplished by disposing of the widely

scattered, and thus hard to manage public lands, in favor of

concentrating management on a few consolidated areas with unique

resource values. AR 00112, CD#1. “Expansion of public land

administration westward would complement public management . . .

[i]n Oregon, enhance public accessibility, and provide more

effective long term protection of the interstate deer herd.” ER

080. 

The 1993 RRMP listed as objectives for Horseshoe Ranch: 

1. Improve the existing public administered deer winter

ranch habitat and afford long-term protection for

additional privately owned deer winter range habitat in

cooperation with California Department of Fish and Game,

Oregon Department of Fish and Wildlife and Ashland

Resource Area BLM; 

2. Allow long-term natural restoration of riparian zones

to Class II or better;

3. Offer semi-primitive non-motorized recreation

opportunities; 

ER 076. 

The 1993 RRMP identified a new boundary for Horseshoe Ranch

and identified it as an area that would be a focus for long term

management. AR 00118. The new boundary included public land, as

well as approximately 7,000 acres of privately held land to the

west of Horseshoe Ranch. AR 00112. 

////

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2 The government notes that the citation does not state that

the HRWA is within the Soda Mountain Area, although it is not clear

whether they dispute the fact or just the citation. 

5

It was intended that BLM would consider acquisition of land

made available by willing sellers within the 1993 RRMP Horseshoe

Ranch boundary, and once purchased, to manage the land consistent

with the RRMP management objectives and land use allocations for

Horseshoe Ranch. AR 00112, 00119, 00127; ER 077. Under the 1993

RRMP, if land was purchased within the Horseshoe Ranch boundary,

no further RRMP amendment would be needed to manage the land as

part of Horseshoe Ranch. AR 00112. 

The redrawing of the Horseshoe Ranch boundary in 1993 did not

expand the amount of public land in Horseshoe Ranch or the amount

of land that was being actively managed as part of Horseshoe Ranch.

AR 00120. Despite the boundary shown in the RRMP, the BLM

administrative boundary remained the boundary shown in the 1983

Habitat Management Plan. AR 00120. 

The Final Environmental Impact Statement for the RRMP measured

impacts to deer populations primarily in terms of the number of

acres placed into or removed from public stewardship. ER 082-83.

C. AMENDMENTS TO THE 1993 RRMP

Within a year of the 1993 ROD, the RRMP was amended by the

Northwest Forest Plan. ER 124. Although the Northwest Forest Plan

dealt primarily with spotted owl habitat, it recognized the Soda

Mountain area, which includes the HRWA2. It said: 

This decision recognizes the special biological

qualities of this unique area and directs the BLM to

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3 The Cascade Siskiyou National Monument was created

to protect its “unmatched” biological diversity, and value as

“biological crossroads” among many other more specific values. ER

119, Proclamation No. 7318, 65 FR 37249 (June 13, 2000). 

6

evaluate carefully the values of the Soda Mountain area

as a biological connectivity corridor and propose any

additional management protection necessary, including a

special designation, through the BLM resource management

plan, to protect those values. 

ER 126. 

D. THE CASCADE SISKIYOU ECOLOGICAL EMPHASIS AREA AND NATIONAL

MONUMENT

The Northwest Forest Plan also established the Cascade

Siskiyou Ecological Emphasis Area (CSEEA), primarily because of

its “unique diverse ecological and biological characteristics.”

ER 098. The majority of the CSEEA was in Oregon, and the Medford

BLM was given the primary responsibility for producing a management

plan. Id.; ER 107, CSEEA Alternative A Map 39. One of the major

decisions for the planning process was establishment of the

boundary. ER 101. Four of the five alternative boundaries

included some portion of the Horseshoe Ranch within the CSEEA

boundary. ER 106-16. Three of the five alternatives included the

area currently in question as an active acquisition interest area.

Id. 

Planning for the CSEEA was cut short by the declaration of the

Cascade Siskiyou National Monument.3 The public comment period for

the CSEEA’s draft EIS was scheduled to end on June 14, 2000, ER

097, but the new monument was proclaimed by the President on June

9, 2000, ER 119, Proclamation No. 7318, 65 FR 37249 (June 13,

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2000). This obviated the need for any further planning for the

CSEEA. ER 117, AR 05048. 

Although the boundary of the Monument coincided with the state

line, the Medford and Redding BLM agreed that since “ecological

processes of the natural landscape are not constrained by

administrative borders,” they would manage all the ecologicallycontiguous areas in the HRWA consistent with the “principles and

policies explicit in the Presidential Proclamation.” ER 178-80.

On the California side of the border, two sections of land

within the acquisition interest area of the HRWA were offered for

sale to the BLM in 1995. ER 014, AR 00113. During the public

participation process initiated by the BLM, private landowners in

the vicinity of the HRWA expressed opposition to federal

acquisition of additional lands. Id. Some private landowners and

neighbors expressed fears that federal acquisitions would result

in a loss of county tax base and that “their traditional livestock

operations and way of life on private lands were threatened with

being prohibited.” Id. The Siskiyou County Board of Supervisors

requested that the BLM amend the Redding Resource Area to reduce

the boundary of the HRWA back to the original 1977 size. Id.; see

also ER 127 (letter dated Aug. 10, 1999 from Siskiyou County Board

of Supervisors). As a result of the concerns raised, BLM withdrew

from the purchase of the parcels. AR 00113.

In February of 2000, the BLM announced that it would begin a

process to consider amending the boundary of the HRWA. The first

step was issuing a notice of intent to consider the proposal by

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Siskiyou County to amend the RRMP Horseshoe Ranch boundary and to

initiate public scoping. ER 014, AR 00113, 00437-38.

E. THE 2003 RRAMP AMENDMENT PROCESS

1. Scoping

In February of 2000, the BLM announced a 30-day scoping review

for a proposed amendment to reconsider the boundary of the HRWA.

ER 014, AR 00113; see also ER 134, AR 00435, 65 Fed. Reg. 11,074

(Mar. 1, 2000). The Federal Register did not mention the concerns

about erosion of ranching lifestyles, loss of tax base, or any of

the other concerns that had led to the request by the Siskiyou

County Board of Supervisors. ER 134, AR 00435; 65 Fed. Reg. 11,074

(Mar. 1, 2000). The notice declared that a “proposal” had been

received to “review the existing boundary” and that the

alternatives will include expansion, reduction, and no action. Id.

BLM held several public meetings in Siskiyou County prior to the

issuance of the EA to explain the proposal to amend the RRMP

Horseshoe Ranch boundary. AR 00113. Over 700 comments were

received. ER 014, AR 00113. 

The California Department of Fish and Game (CDF&G) with whom

the BLM co-managed the area expressed the following comments about

the possible reduction in acquisition interest area in the HRWA:

In our initial review of the RMP, we voiced concern

about loss of public opportunity because there was a net

loss of public lands. That concern was mitigated by

features in the RMP that provided for the acquisition of

lands from willing sellers that included wetlands in the

Shasta Valley and lands between Interstate 5 and the

western boundary of the Horseshoe Ranch Wildlife Area.

. . . The existing Horseshoe Ranch which we

cooperatively manage is receiving increasing public use

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and the habitat improvement projects we have implemented

have resulted in improved habitat for wildlife. Given

that we feel it is very important that the RMP continue

to provide direction to acquire lands from willing

sellers within the designated area. 

ER 135-36, AR 04254-55. 

Felice Pace, of Klamath Forest Alliance, a plaintiff in this

case, also commented on the amount of lands disposed of and

acquired by the agency:

BLM managers have “privatized” over 17,000 acres in this

county and have another 21,000 plus “in process” for

privatization. Yet, to date the BLM has only acquired

about 1,700 acres in spite of the fact that there are

willing seller’s in the areas designated in the RMP for

acquisition. THIS IS TOTALLY UNACCEPTABLE PERFORMANCE.

. . . the EIS must fully disclose the performance of the

Redding BLM under the 199[3] Plan including the amount

of land in Siskiyou County that was planned for disposal

and acquisition and the actual amounts disposed of and

acquired, as well as the reasons for the performance. 

ER 137-38, AR 04369-70. 

Klamath Forest Alliance also commented on the importance of

the area as a biological corridor and asked that the BLM consider

recent scientific studies in the area:

. . . This area has incredible biological importance as

one of only three low-elevation breaches of the Cascade

Range. 

. . . the EIS must consider all the biological

information collected through the KNF’s Partners in

Flight Program. This data documents the importance of

the Klamath Corridor. For example, the program has found

large numbers of willow flycatchers migrating through

the Klamath Corridor. The EIS must also fully consider

scientific information in the recent assessment by Jim

Strittholdt and Reed Noss, and recent investigations

into the need for movement corridors in the NW to

facilitate wildlife recolonization of areas from which

they were previously extirpated. 

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Id. 

Similarly, the California Wilderness Coalition, in a joint

comment with the North Group of the Sierra Club Redwood Chapter

specifically asked the BLM to consider the role of the Horseshoe

Ranch “in providing regional habitat connectivity for plants and

wildlife.” ER 139. They also requested that the BLM consider how

the various alternatives would influence the adjacent CSEEA. Id.

Many commenters also asked the BLM to expand the HRWA acquisition

interest area. See ER 140-44.

2. The Draft Environmental Assessment

A Draft Environmental Assessment (DEA) was published for

comment in December of 2001, AR 00323, a year and a half after the

declaration of the Cascade Siskiyou National Monument. ER 119,

Proclamation No. 7318, 65 FR 37249 (June 13, 2000). The DEA was

circulated for a 60 day public comment period. AR 00323. BLM

received over 2,200 letters, postcards, emails and faxes commenting

on the draft EA. AR 01049-04238G. 

The DEA had three alternatives. AR 00341-00342. Alternative

One reduced the boundaries of the HRWA to that of the original B.B.

Miller ranch. AR 00341; Map at AR 00343. It excluded sections 21,

22, and 34, the unfenced section of the HRWA immediately to the

west of the Miller ranch fence, and made them available for

disposal to the private sector. Id. Alternative Two also shrank

the RRMP boundaries, but continued to include sections 21, 22, and

34 along the western border. AR 00342 (DEA); Map at AR 00344. 

////

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Alternative Two initially provided management direction for

acquisition interest in a substantially larger region than the 1993

RRAMP. Id. Specifically, it provided for the acquisition of

private lands in the entire 1993 boundary plus lands to the south.

Id. While this alternative provided official management direction

in the text to acquire land if a willing seller offered it, no

published map showed any official acquisition area boundary. 

Acquisitions were specifically limited to land offered by willing

sellers, lands with high quality deer habitat, and undeveloped

lands (lands where improvements represented less than 20% of the

total value of the lands). Id. Alternative Three was the No

Action alternative. Id.; Map at 00345. It would have kept the

1993 RRMP boundaries and policy of acquisition of private lands

from willing sellers within the boundaries drawn in 1993. 

CDF&G, the BLM’s co-managers of the HRWA, supported

Alternative Two at least partly because of the expanded acquisition

interest area. ER 157, AR 01065-67. Specifically, CDF&G said that

alternative represented “the greatest opportunity to retain and

enhance deer winter range and other habitat near the HRWA and best

meets the increasing public demand for recreational opportunities

in the area.” ER 156, AR 01066. CDF&G further stated that:

[t]he HRWA provides important winter range habitats for

deer and supports a wide variety of other species of

wildlife. Although deer occupy the HRWA year–round, most

are migratory with the majority of the population

summering in Oregon. The condition and the extent of

deer winter range on the HRWA and surrounding lands are

critical to the health and persistence of deer herds in

this region.

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ER 156, AR 01066. CDF&G also reiterated their concern about the

possibility of reducing the acquisition interest area: 

In our initial review of the existing 1993 RMP, we

expressed concern about the reduction in public lands

and loss of public recreational opportunity proposed

under that plan. Our concern was mitigated by features

of the plan that provided for acquisition of lands west

of the HRWA as well as wetlands in the Shasta Valley.

This would have enhanced public use and resource values

by more effectively configuring BLM lands. However since

adoption of the RMP the BLM has disposed of 16,928 acres

of public land and acquired only 1,657 acres of private

land in Siskiyou County. None of those lands purchased

by BLM were located in the vicinity of the HRWA.

Id.

The Oregon Department of Fish and Wildlife (ODFW) strongly

supported Alternative 3, the no action alternative, because they

believed it would provide the best wildlife management opportunity.

ER 153-54, AR 01078-79. ODFW stated:

Southern Oregon and Northern California is home to one

of the few migratory black-tailed deer herds in the

Northwest. They summer in Oregon in the Siskiyou and

Cascade Mountains, and winter along the

California/Oregon border and south to the Klamath River.

Populations of black-tailed deer in southwest Oregon

have declined substantially in the last 10 years.

Currently populations in the Rogue Unit are 35 to 40%

below management objectives. Contributing factors to

this decline are believed to be predation, diseases,

development on winter ranges, and declining quantity and

quality of forage on both summer and winter ranges. 

In the years 1994 through 1999, 120 deer in the south

Cascade and Siskiyou Mountains of Oregon and California

(many in the HRWA) were trapped and fitted with radio

collars. The movements of these deer were monitored

throughout the year in order to document summer and

winter ranges and migration routes. The area identified

as critical winter range in the RRMP is consistent with

the telemetry data from this study. We were not able to

collar as many deer to the west of the HRWA. However, we

expect deer densities to the west to be similar to those

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4 Elsewhere it states it must be “presently contiguous” to

the existing HRWA to be considered. ER 024, AR 00125.

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in the HRWA. 

. . . Habitat improvement and long-term protection can

be best accomplished through public administration.

Because this is one of the last large undeveloped tracts

of deer winter range in the region, and because of the

critical need to provide long-term protection, ODFW

supports the adoption of Alternative 3: The No Action

Alternative; Implement the Redding RMP. Id.

3. The Final Environmental Assessment

On May 1, 2003, BLM revised the draft EA and issued the

Proposed Plan Amendment to the Redding RMP and Environmental

Assessment for the Horseshoe Ranch Wildlife Area (Proposed Plan

Amendment and Final EA or FEA). ER 011, AR 00105, 00108. BLM

received four protests on the Proposed Plan Amendment and Final EA.

AR 00799-00867. The FEA analyzed the proposed amendment and three

alternatives. AR 00105. This proposed alternative eventually

became the selected alternative in the Decision Record. ER 002,

AR 00003. 

The proposed amendment changes the procedure required for

acquisition of private lands to be added to Horseshoe Ranch. AR

00124. The RRMP amendment consolidates the RRMP Horseshoe Ranch

boundary with the BLM administrative boundary. AR 00124. The

selected alternative used the formal boundaries described in

Alternative Two but eliminated all mention of acquisition interest.

ER 024, AR 00125. Instead, it stated that “only property

immediately contiguous4 to the HRWA boundary could be considered”

and then only acquired if it met certain specified criteria. AR

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00115. Additional criteria include winter deer habitat,

recreational access, vulnerability of the property to development,

consistency with the RRMP and land disposal acquisition goals, and

“other management concerns.” Id. The Final EA states that “BLM

would consider private landowners’ offer to sell adjacent lands for

addition to the HRWA only if the private parcels are immediately

adjacent to the boundary, and only if the land meets criteria for

deer winter habitat.” AR 00003; 00015. The only explanation in

the FEA for the elimination of an acquisition interest area in

Alternative 2 was that it was “confusing.” ER 015, AR 00114. 

Any land acquired under these circumstances could only be

formally added to the HRWA by a plan maintenance action and the

completion of a new EA. Id. Subsequent acquisitions after the

acquisition of the “presently contiguous” parcels would be treated

differently. ER 016, AR 00115. “Any subsequent proposed

acquisitions of land not presently contiguous to the HRWA boundary

would require a new plan amendment.” Id. The Final EA states that

“BLM would consider private landowners’ offer to sell adjacent

lands for addition to the HRWA only if the private parcels are

immediately adjacent to the boundary, and only if the land meets

criteria for deer winter habitat.” AR 00003; 00015. In other

words, if the first layer of lands presently contiguous to the HRWA

were ever acquired, BLM would prohibit itself from acquiring a

second layer of contiguous land in the HRWA region without engaging

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5 The government disputes the interpretation, stating that

the record does not say that contiguous lands have to be purchased

first. The record, however, provides that “[a]cquired lands not

contiguous with the RRMP amendment boundary would require an RRMP

amendment to be managed as part of Horseshoe Ranch.” 

15

in an entire RRAMP amendment process.5 

4. The Record of Decision

 On March 9, 2004, the BLM formally adopted the Proposed

Amendment when it released its Decision Record and Finding of No

Significant Impact (FONSI). ER 001-06, AR 00002-03. The RRMP

amendment redrew the RRMP boundary of Horseshoe Ranch to

incorporate only public land, excluding all private lands. AR

00115; ER 002, AR 00003; see map ER 007, AR 00008. Under the 1993

RRMP Horseshoe Ranch boundary, only public land was being managed

as Horseshoe Ranch. AR 00120. It declared that BLM would

“continue to manage for multiple uses, including permitted

livestock grazing, on the approximately 1,200 acres in the western

portion of the HRWA.” ER 002, AR 00003. The FEA identifies these

approximately 1,200 acres as sections 21, 22, and 34 that are

currently outside the fenced boundary. ER 024, AR 00125. 

Consistent with the Selected Alternative, the Decision

eliminated the 1993 RRAMP acquisition interest area. ER 002, AR

00003. The ROD further stated that:

BLM has publicly expressed its intention to balance the

approximately 17,000 acres of public land transferred

from Federal ownership in Siskiyou County since 1993 by

acquisitions of environmentally sensitive lands in other

parts of the County. For this reason, and in response to

a 1999 request by Siskiyou County, BLM eliminates the

extensive area identified in alternatives 2 and 3 for

potential federal acquisition of private lands. BLM does

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not actively pursue new acquisitions in connection with

HRWA. 

Id. Plaintiffs point out that no explanation is provided of how

relinquishing its plan to acquire private land will “balance” the

Agency’s disposal of 17,000 acres of public land against the 1,600

acres it acquired. 

II.

STANDARDS

Summary judgment is appropriate when it is demonstrated that

there exists no genuine issue as to any material fact, and that the

moving party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(c); See also Adickes v. S.H. Kress & Co., 398 U.S. 144,

157 (1970); Secor Limited v. Cetus Corp., 51 F.3d 848, 853 (9th

Cir. 1995).

Under summary judgment practice, the moving party

[A]lways bears the initial responsibility of

informing the district court of the basis for

its motion, and identifying those portions of

"the pleadings, depositions, answers to

interrogatories, and admissions on file,

together with the affidavits, if any," which

it believes demonstrate the absence of a

genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the

nonmoving party will bear the burden of proof at trial on a

dispositive issue, a summary judgment motion may properly be made

in reliance solely on the 'pleadings, depositions, answers to

interrogatories, and admissions on file.'" Id. Indeed, summary

judgment should be entered, after adequate time for discovery and

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upon motion, against a party who fails to make a showing sufficient

to establish the existence of an element essential to that party's

case, and on which that party will bear the burden of proof at

trial. See id. at 322. "[A] complete failure of proof concerning

an essential element of the nonmoving party's case necessarily

renders all other facts immaterial." Id. In such a circumstance,

summary judgment should be granted, "so long as whatever is before

the district court demonstrates that the standard for entry of

summary judgment, as set forth in Rule 56(c), is satisfied." Id.

at 323.

If the moving party meets its initial responsibility, the

burden then shifts to the opposing party to establish that a

genuine issue as to any material fact actually does exist.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986); See also First Nat'l Bank of Ariz. v. Cities Serv. Co.,

391 U.S. 253, 288-89 (1968); Secor Limited, 51 F.3d at 853. 

In attempting to establish the existence of this factual

dispute, the opposing party may not rely upon the denials of its

pleadings, but is required to tender evidence of specific facts in

the form of affidavits, and/or admissible discovery material, in

support of its contention that the dispute exists. Fed. R. Civ.

P. 56(e); Matsushita, 475 U.S. at 586 n.11; See also First Nat'l

Bank, 391 U.S. at 289; Rand v. Rowland, 154 F.3d 952, 954 (9th Cir.

1998). The opposing party must demonstrate that the fact in

contention is material, i.e., a fact that might affect the outcome

of the suit under the governing law, Anderson v. Liberty Lobby,

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Inc., 477 U.S. 242, 248 (1986); Owens v. Local No. 169, Assoc. of

Western Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1992)

(quoting T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n,

809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine,

i.e., the evidence is such that a reasonable jury could return a

verdict for the nonmoving party, Anderson, 477 U.S. 248-49; see

also Cline v. Industrial Maintenance Engineering & Contracting Co.,

200 F.3d 1223, 1228 (9th Cir. 1999).

In the endeavor to establish the existence of a factual

dispute, the opposing party need not establish a material issue of

fact conclusively in its favor. It is sufficient that "the claimed

factual dispute be shown to require a jury or judge to resolve the

parties' differing versions of the truth at trial." First Nat'l

Bank, 391 U.S. at 290; See also T.W. Elec. Serv., 809 F.2d at 631.

Thus, the "purpose of summary judgment is to 'pierce the pleadings

and to assess the proof in order to see whether there is a genuine

need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R.

Civ. P. 56(e) advisory committee's note on 1963 amendments); see

also International Union of Bricklayers & Allied Craftsman Local

Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir.

1985).

In resolving the summary judgment motion, the court examines

the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any. Rule

56(c); See also In re Citric Acid Litigation, 191 F.3d 1090, 1093

(9th Cir. 1999). The evidence of the opposing party is to be

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believed, see Anderson, 477 U.S. at 255, and all reasonable

inferences that may be drawn from the facts placed before the court

must be drawn in favor of the opposing party, see Matsushita, 475

U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654,

655 (1962) (per curiam)); See also Headwaters Forest Defense v.

County of Humboldt, 211 F.3d 1121, 1132 (9th Cir. 2000).

Nevertheless, inferences are not drawn out of the air, and it is

the opposing party's obligation to produce a factual predicate from

which the inference may be drawn. See Richards v. Nielsen Freight

Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d

898, 902 (9th Cir. 1987).

Finally, to demonstrate a genuine issue, the opposing party

"must do more than simply show that there is some metaphysical

doubt as to the material facts. . . . Where the record taken as a

whole could not lead a rational trier of fact to find for the

nonmoving party, there is no 'genuine issue for trial.'"

Matsushita, 475 U.S. at 587 (citation omitted).

III.

ANALYSIS

A. STANDING

Before reaching the merits of the plaintiffs’ case, the court

must determine whether the Soda Mountain Wilderness Council (SMWC)

and/or the Klamath Wilderness Forest Alliance (KWFA) have standing

to bring this challenge under NEPA, FLPMA, and the APA. Steel Co.

v. Citizens for a Better Environment, 523 U.S. 83, 102 (1998)

(standing is a threshold jurisdictional question). 

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There are two different elements to the standing inquiry.

First, the plaintiffs must demonstrate that they have standing

under Article III which requires a demonstration that:

 (1) [plaintiffs have] suffered an "injury in fact" that

is (a) concrete and particularized and (b) actual or

imminent, not conjectural or hypothetical; (2) the

injury is fairly traceable to the challenged action of

the defendant; and (3) it is likely, as opposed to

merely speculative, that the injury will be redressed by

a favorable decision.

Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc.,

528 U.S. 167, 181 (2000). For the SMWC and KWFA to show that they

have standing to sue as associations on behalf of their members,

they must demonstrate that one or more of its members would have

standing to sue in their own right, that “the interests at stake

are germane to the organization's purpose, and neither the claim

asserted nor the relief requested requires the participation of

individual members in the lawsuit.” Id. 

Secondly, in order to bring suit under the APA the plaintiffs

must prove that the interests they seek to protect fall under the

interests that NEPA was designed to protect. Kootenai Tribe of

Idaho v. Veneman, 313 F.3d 1094 (9th Cir. 2002). Section 702 of

the APA provides that “[a] person suffering legal wrong because of

agency action, or adversely affected or aggrieved by agency action

within the meaning of a relevant statute, is entitled to judicial

review thereof.” 5 U.S.C. § 702. 

From all that appears, the defendants concede that the

plaintiffs’ interests fall within the "zone of interests" sought

to be protected by NEPA and/or the FLPMA. The defendants contest,

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however, whether those interests have actually been affected by the

action in question, and whether plaintiffs have demonstrated an

injury in fact that is fairly traceable to the impacts of the

amendment. Defs.’ Br. at 7; see also Lujan v. National Wildlife

Federation, 497 U.S. 871, 883 (1990); Desert Citizens Against

Pollution v. Bisson, 231 F.3d 1172, 1179 (9th Cir. 2000).

Plaintiffs have demonstrated that they have broad recreational

and environmental interests in the well being of the HRWA and the

surrounding property. Defendants claim that those interests are

not affected by the proposed action because “BLM’s action will not

result in any changes to the public lands within Horseshoe Ranch

that Plaintiffs’ members may use or enjoy.” Defs.’ Br. at 7. By

implication, the defendants appear to contend that since the

surrounding land is private, plaintiffs can claim no right to

contest the government’s policy towards that land. The argument

does not lie. An ability to use the adjacent land is simply not

a requisite for standing. 

The Ninth Circuit has specifically held that plaintiffs need

not have access to land in order to demonstrate that they have an

interest in the environmental protection of that land. In Cantrell

v. City of Long Beach, the court concluded that plaintiff birdwatchers had standing to challenge the adequacy of an Environmental

Impact Statement prepared by the Navy to support the proposed

closure and later development of a naval base. 241 F.3d 674, 680

(9th Cir. 2001). The Navy argued that because the plaintiffs had

“no legal right to enter the closed station and gaze over the

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property line at the birds and their habitat” they could not

establish standing. Id. at 680-81. The court noted that

plaintiffs had “visited the areas in and around the station to

observe the habitats” of the various bird species, and found that

the removal of the bird habitats would affect their interest in

future birdwatching in the area. Id. at 680. The court concluded

that

we have never required a plaintiff to show that he has

a right of access to the site on which the challenged

activity is occurring, or that he has an absolute right

to enjoy the aesthetic or recreational activities that

form the basis of his concrete interest. If an area can

be observed and enjoyed from adjacent land, plaintiffs

need not physically enter the affected area to establish

an injury in fact.

Id. at 681 (citing Laidlaw, 528 U.S. at 182); see also Save Our

Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1120 (9th Cir. 2005)

(finding that although the development in question was private

plaintiff had standing to sue “to preserve wildlife-viewing

opportunities, both for its residents and others from publicly

accessible locations.”). 

As Cantrell teaches, it is not necessary for the plaintiffs

to prove only harm to the public lands already owned by BLM and the

CDF&G to have standing. The plaintiffs have standing because the

proposed action may affect the manner in which the private lands

are managed in the future, a cognizable interest despite the

plaintiffs lack of a right to access to the land. The declarations

submitted by plaintiffs demonstrate that at least some of the

organizations’ members regularly travel to the edges of the public

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property. For instance, David Willis avers that he has 

ridden to the very edges of the property in question at

least three dozen times. In fact, several of the best

trail rides on which I regularly take visitors pass

right by these areas. During these trip[s] the area in

question is regularly in sight, and the ecological

effects of the management of private lands can be

readily observed.

Dec. of Willis at ¶¶ 3-4; Dec. of Felice Pace at ¶¶ 3 (“I have been

to very edges of the property in question several times from the

backcountry, and drive by it, and observe it from Highway 5.”). 

Moreover, even if Cantrell was not dispositive, it appears

that plaintiffs would have standing. As they argue, there is

record evidence that it is expected that there will be increased

use of the public lands. See, e.g., AR 04254-55 (the CDF&G noted

that “the existing Horseshoe Ranch which we cooperatively manage

is receiving increasing public use.”). Common sense suggests that

if the BLM does not acquire additional lands there will be adverse

impact on the existing public land by virtue of its more intense

use. Moreover, it is equally foreseeable that development on

adjacent private land will adversely impact wildlife within the

greater Soda Mountain area. 

The maintenance of a healthy herd of Jenny Creek deer is a

goal that is set out in the RRMP, and one that could possibly be

hindered if there is greater impact on the public lands or if the

private lands are developed. See Final EA, AR 00112 (“The HRWA is

managed primarily to enhance and protect deer winter range habitat

and provide public access for hunting and other recreational

pursuits.”); see also 1993 RRMP at 1, ER 071 (If the RRMP was

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adopted the “BLM would double the size of the Horseshoe Ranch

habitat Management Area to benefit deer.”) and 4-20, ER 082 (“if

current population growth in the northern part of the state

continues as predicted development will adversely impact deer

winter range habitat.”). 

The court wishes to emphasize that here it is not deciding

that there will be any significant impact on the environment. All

that is necessary for standing, however, is a causal connection

between the interests of the plaintiffs and the action taken by the

BLM. See, e.g., Kootenai Tribe of Idaho v. Veneman 313 F.3d 1094,

1112 (9th Cir. 2002). There, plaintiffs who had “ownership

interests in land next to the national forests” had standing to

challenge under NEPA a Roadless Rule being implemented in the

national forest. The Circuit held that there was a “sufficient

geographical nexus to the site of the challenged project that they

may be expected to suffer whatever environmental consequences may

result from implementation of the Roadless Rule.” Id. (citing

Davis v. Coleman, 521 F.2d 661, 671 (9th Cir. 1975)). Here, the

plaintiffs have a cognizable interest in how changes in adjacent

land management may affect the existing HRWA lands and the wildlife

that rely upon the area. See Dec. of Carol Wright at ¶ 3

(explaining that the “geographic area of interest for SMWC includes

the entire Soda Mountain area, particularly the Cascade-Siskiyou

National Monument, the Horseshoe Ranch Wildlife Area, and all the

lands in the vicinity that contribute to improving the ecological

health and aesthetic value of these areas.”). 

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The declarations submitted by plaintiffs also demonstrate that

they have an interest in expanded public recreation areas and thus

may be affected by the impact the proposed amendment to the RRMP

may have on the public land that is available in the broader area.

See Dec. of Carol Wright at ¶¶ 11, 18; Dec. of Felice Pace at 

¶¶ 5, 6 (stating that he approved of the 1993 RRMP “because it

would clearly allow for more area in which to hike, and appreciate

the backcountry” as well as “improve the overall ecological

condition, and aesthetic quality of the area.”).

Finally, defendants’ contention that plaintiffs lack standing

because the proposed amendment will not effect any changes on the

public lands, appears to address a merits issue rather than a

standing issue. Plaintiffs need not demonstrate, for the purpose

of the standing analysis, that actual environmental harm will

occur, that question is reserved for the case’s merits. See Hall

v. Norton, 266 F.3d 969, 976 -977 (9th Cir. 2001); Ecological

Rights Foundation v. Pacific Lumber Co., 230 F.3d 1141, 1152 (9th

Cir. 2000) (“the causal connection put forward for standing

purposes cannot be too speculative, or rely on conjecture about the

behavior of other parties, but need not be so airtight at this

stage of the litigation as to demonstrate that the plaintiffs would

succeed on the merits.”). Rather, plaintiffs need only to show

that some of their interests might be affected by the final agency

action. Hall v. Norton, 266 F.3d 969, 976 -977 (9th Cir. 2001)

(“The purpose of the standing doctrine is to ensure that the

plaintiff has a concrete dispute with the defendant, not that the

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plaintiff will ultimately prevail against the defendant. . . .

Rather, [plaintiff] need only establish the reasonable probability

of the challenged action's threat to his concrete interest.”);

Desert Citizens Against Pollution v. Bisson, 231 F.3d 1172, 1179

(2000). It is seems clear that a policy which would either

eliminate or drastically reduce the ability of BLM to acquire

additional lands would not at least have the possibility of

impacting the interests discussed above. 

This court raised on its own a standing question not advanced

by the defendants. The court requested further briefing because

it was unclear whether Congressional approval would be required for

BLM to actually acquire adjacent land. If that had been the case,

arguably the court would have been faced with a situation similar

to Department of Transportation v. Public Citizen, 541 U.S. 752

(2004). There, the Supreme Court held that “where an agency has

no ability to prevent a certain effect due to its limited statutory

authority over the relevant actions, the agency cannot be

considered a legally relevant ‘cause’ of the effect.” Id. at 770.

As the parties’ further briefing demonstrates, the BLM may

acquire land in the Horseshoe Ranch area through two different

means. The first, purchase of land from a willing seller, requires

that BLM seek funding from Congress. The second, and preferred

approach, land exchanges, does not require congressional approval.

 In a declaration, Charles Wright, the Supervisory Realty

Specialist for the Redding Field Office, avers that “approximately

1,700 acres have been acquired through exchange” in Siskiyou

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6 Apparently, the “BLM administrative boundary” refers to the

boundary between the public lands that are managed by BLM and those

private lands which were part of the so called “acquisition area,”

but not otherwise managed by the BLM. 

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County, including an exchange for 320 acres in the Horseshoe Ranch

Management Area. Dec. of Charles Wright at 2. Wright set out

eight primary steps (documents) required for a land exchange: 

1) development of the proposal; 2) preparation of a

feasibility report; 3) Agreement to Initiate Land

Exchange; 4) Notice of Exchange Proposal (NOEP); 5)

National Environmental Policy Act (NEPA) analysis and

documentation and appraisal; 6) Notice of Decision; 7)

Binding Agreement and appraisal update(s) as needed; 8)

Title Transfer/Escrow. 

Id. These exchanges may be “initiated by any person, corporation,

or legal entity or may be initiated by the BLM.” Id. Defendants

also note that “it would be possible for BLM to acquire land

through donation or use of non-federal funding sources.” Defs.’

Supp. Br. at 3. 

Plaintiffs have demonstrated a host of different concerns

which may be impacted by the proposed amendment. The court is

therefore satisfied that plaintiffs have demonstrated that they may

suffer an “injury in fact” that is within the “zone of interests”

that NEPA and FLPMA were designed to protect. 

B. THE CENTRAL DISPUTE 

It appears to the court that central to the case is a dispute

about what the proposed amendment would do if it was made final.

BLM argues that they are merely consolidating the overall RRMP

Horseshoe Ranch boundary with what they describe as the “BLM

administrative boundary.”6 While acknowledging that this would

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7 This contention clearly contradicts the EA. After stating

that it will eliminate the acquisition area, the EA states that

“BLM does not actively pursue new acquisitions in connection with

HRWA.” AR 00005.

8 The FLPMA regulations provide that maintenance on a

management plan: “is not considered a plan amendment and shall not

require the formal public involvement and interagency coordination

process described under §§ 1610.2 and 1610.3 of this title or the

preparation of an environmental assessment or environmental impact

statement. Maintenance shall be documented in plans and supporting

records.” 43 C.F.R. § 1610.5-4.

9 An amendment requires the preparation of either an EA or

an EIS and a public involvement procedure as set out in the

regulations. 43 C.F.R. § 1610.5-5.

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eliminate the acquisition area from the Horseshoe Ranch boundary,

defendants claim this will have no effect upon the opportunity for

further acquisitions. They assert that “lands contiguous with the

Horseshoe Ranch boundary would continue to be evaluated for

acquisition”7 although inclusions of those lands “would require a

plan maintenance action.”8 Defs.’ Br. at 4. For those lands not

currently contiguous, however, it would take an RRMP amendment to

add them to Horseshoe Ranch.9 It thus appears that lands not

contiguous to the “administrative boundary” would not “continue to

be evaluated for acquisition.” 

The plaintiffs characterize the amendment differently. First,

they note that along with only looking to acquire lands “presently

contiguous” to the existing public lands, BLM included a list of

criteria that must be met which were not in the original 1993 RRAMP

and which would make it less likely that land would be acquired.

They further note that if the private lands contiguous to the

existing public lands were acquired, then BLM would be prohibited

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from acquiring lands in the next layer without an amendment. Thus,

plaintiffs believe that this amendment would make it less likely,

if not impossible, for private lands to be acquired in the future.

The question at issue is whether the procedural change has the

possibility of having on-the-ground impacts, either as direct,

indirect or cumulative impacts on the greater Soda Mountain area.

See 40 C.F.R. §§ 1502.16, 1508.7, 1508.8(a-b), 1508.25(c); Idaho

Sporting Congress, Inc. v. Rittenhouse, 305 F.3d 957, 973 (9th Cir.

2002)(requiring the consideration of direct, indirect, and

cumulative impacts for an EA as well as an EIS); Kern v. U.S.

Bureau of Land Management, 284 F.3d 1062, 1076 (9th Cir. 2002). 

C. APPLICATION OF NORTON v. SOUTHERN UTAH WILDERNESS ALLIANCE

Defendants claim that the Supreme Court decision in Norton v.

Southern Utah Wilderness Alliance, 542 U.S. 55 (2004)(SUWA),

prohibits plaintiffs from obtaining the remedy they seek under

FLPMA. They maintain that SUWA held that ordinarily the goals set

out in BLM management plans are not binding commitments that the

agency can be forced to follow via the APA’s grant of authority to

the court to “compel action unlawfully withheld or unreasonably

delayed.” 5 U.S.C. § 706(1).

In SUWA the court was reviewing an action brought by

environmental plaintiffs who sought to compel the BLM to better

manage wilderness study areas in compliance with goals set out in

the land use plan for that area. 542 U.S. 55. The Court concluded

that FLPMA’s general statutory directive that “BLM manage land in

accordance with land use plans, and the regulatory requirement that

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10 This is also true for the case that defendants recently

submitted. The Wilderness Society v. Norton, F.3d , 2006 WL

89195 (D.C. Cir. 2006). 

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authorizations and actions conform to those plans” when combined

with a statement in the plan that BLM “will” take a certain action

did not rise to the level of a binding commitment that could be

compelled under the APA. 

The Court explained that a statement in a land use plan that

the agency “will” do something was not sufficient “at least absent

clear indication of binding commitment in the terms of the plan.”

Id. at 69. The Court observed, however that an action called for

in a plan may be compelled “perhaps when language in the plan

itself creates a commitment binding on the agency.” Id. at 71.

The present action is distinguished from SUWA in a number of

ways. The first distinction is the relief sought in SUWA and the

relief sought in the matter at bar. In SUWA the plaintiffs were

seeking to compel agency action assertedly “unlawfully withheld or

unreasonably delayed.” See § 706(1).10 Here, BLM has taken a

final agency action which is independently reviewable under a

separate section of the APA requiring the court to “hold unlawful

and set aside agency action, findings, and conclusions found to be

arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A). Rather than seeking

to enforce what the Supreme Court describes as a “non-imperative”

mandate under § 706(1), the plaintiffs are able to avail themselves

of § 706(2)(A) because the BLM is amending the Redding Resource

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11 But see Fed. R. Civ. P. 54(c) (“except as to a party

against whom a judgment is entered by default, every final judgment

shall grant the relief to which the party in whose favor it

rendered is entitled, even if the party has not demanded such

relief in the party’s pleadings.”). Given the court’s disposition,

I need not consider whether plaintiffs are entitled to judgment

under § 706(2)(A).

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Management Plan, thus committing to a final decision.

A second ground distinguishes the matter at bar from SUWA.

The Record of Decision adopting the 1993 RRMP states: 

The public impressed upon BLM the desire to consolidate

public lands in areas with outstanding recreational

opportunities and unusual or imperiled biological

resources. Conversely, existing public lands with

limited recreational potential and/or commonplace

natural resources were identified for disposal. This

document represents BLM’s commitment to these public

desires and constitutes a compact with the public. 

See Excerpt of Record to Plaintiffs’ Opening Brief at 70. 

(Emphasis added). Plaintiffs contend that this language is the

binding commitment the Supreme Court said might be sufficient to

allow for an enforcement action under § 706(1). The court must

concur. If this language does not, despite its plain terms,

constitute a commitment, then no language would suffice. It seems

clear that the agency went out of its way to make clear it was

committing to a certain process, and withdrawing from that “compact

with the public” would appear to subject the agency to suit under

§ 706(1). 

Plaintiffs, however, sued under § 706(2)(A), thus suggesting

that summary judgment under 706(1) may be inappropriate.11

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Nonetheless, the commitment is still significant since 

While the scope of review under the "arbitrary and

capricious" standard is narrow and a court is not to

substitute its judgment for that of the agency, the

agency nevertheless must examine the relevant data and

articulate a satisfactory explanation for its action. In

reviewing that explanation, a court must consider

whether the decision was based on a consideration of the

relevant factors and whether there was a clear error of

judgment. 

Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29, 30-31 (1983). Thus, this court must

determine whether all the “relevant factors” were considered when

the agency decided to adopt the amendment under review. Nothing

suggests the agency considered the commitment noted above in the

matter under consideration. I turn now to whether the agency’s

action fails the arbitrary and capricious test in other ways as

well.

D. REVIEW UNDER NEPA AND THE APA

While there is a presumption that a federal agency acted in

good faith and that agency action is valid, this does not waive the

court’s obligation to ensure that the agency took a “hard look at

the environmental consequences of its actions.” Friends of the

Payette v. Horseshoe Bend Hydroelectric Co., 988 F.2d 989, 993 (9th

Cir. 1993); Overton Park, 401 U.S. 402, 416 (1971); Akiak Native

Community v. U.S. Postal Service, 213 F.3d 1140, 1146 (9th Cir.

2000). The court is to defer to a “fully informed and

well-considered agency decision, but [it] need not forgive a clear

error of judgment.” Churchill County v. Norton, 276 F.3d 1060,

1071 (9th Cir. 2001) (internal quotations omitted). 

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E. FLMPA’S REQUIREMENTS

FLMPA regulations contain a plain requirement that an EA or

an EIS must be prepared prior to the amendment of a Resource

Management Plan. 43 C.F.R. § 1610.5-5. They further require that

“[i]n all cases, the effect of the amendment on the plan shall be

evaluated.” Id. Thus, the applicable regulations require that the

EA under review must not only examine the impact that the amendment

may have on the Horseshoe Ranch area, but also must examine the

greater impact that the amendment will have on the 1993 Redding

Resource Management Plan. 

Defendants aruge that the action under review only continues

the status quo and thus does not require full environmental review.

Given FLPMA’s specific mandate, however, the argument cannot

prevail. At a minimum, an adequate environmental assessment is

necessary to determine whether the amendment may have a significant

environmental impact, inter alia, on the management plan. 

F. PURPOSE OF THE AMENDMENT

The NEPA regulations require that the EA prepared by the BLM

“include brief discussions of the need for the proposal, of

alternatives as required by sec. 102(2)(E), of the environmental

impacts of the proposed action and alternatives, and a listing of

agencies and persons consulted.” 40 C.F.R. § 1508.9. This purpose

statement is an obvious place for the court to start when analyzing

the adequacy of an environmental impact statement or an

environmental assessment. It is from this statement that the

agency, public, and, ultimately, the court may begin to judge

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whether the agency has fully analyzed the possible impacts of the

action and reviewed a reasonable range of alternatives to that

action.

Chapter II of the EA prepared by the BLM in the matter at bar

is entitled “Purpose of the Proposed Amendment.” AR 00120. 

Curiously, despite its title, the section never actually

articulates the purpose; rather, the section explains what the

document analyzes. It explains that “[t]his document analyzes a

proposed change to the HRWA boundary along with three alternatives.

Also addressed are the BLM land acquisition policy related to the

HRWA and management of livestock grazing.” Id. 

Defendants’ brief acknowledges that the need for the action

is “not well articulated in the EA.” Defs.’ Br. at 13. Instead,

the agency refers the court to the background information and the

administrative record. Id. Unfortunately, the material referred

to again does not make clear exactly what the agency was attempting

to accomplish by the plan amendment. While the Bureau’s reticence

makes analysis more difficult, it does not render it impossible.

As noted in § I of this opinion, the Bureau action appears to

have been prompted by a controversy which arose when BLM considered

purchasing two sections of land which were offered for sale in the

acquisition interest area. AR 00113. Certain members of the

public objected to the purchase and BLM withdrew from the sale.

Id. The Siskiyou County Board of Supervisors then requested that

the BLM amend the RRMP to reduce the size of the acquisition area

that was set out in the 1993 Plan. See AR 00447-48. The Notice

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of Intent issued by BLM explains that it has received this letter,

but merely states that it “will consider a proposal to amend the

existing boundary of the Horseshoe Wildlife Area” without expanding

upon why the amendment is necessary, or even desirable. AR 00435.

The failure of the agency to clearly define the purpose and

scope of its action can be seen in the section entitled “Issues

Considered, Then Dismissed from Full Analysis.” AR 00121. There

the agency explains that “for a variety of reasons many of the

comments received from the public were beyond the scope of the

analysis” and were therefore not considered fully. Id. Some of

the comments “went beyond the geographic scope of the undertaking.”

Again, however, given the paucity of exposition, it is difficult

to understand what that scope was. Here, again the failure to

articulate the purpose and scope raises serious questions as to the

adequacy of the agency’s action. The agency dismissed some public

comment from consideration on the grounds that it was beyond a

geographic scope which was undefined, making analysis of the

propriety of that conduct impossible. 

Along with helping to define the needed alternatives, the

purpose section serves another important role in the NEPA scheme.

NEPA is not a substantive statute, it is not designed to prohibit

agencies from undertaking projects which may have a significant

effect on the environment; it is designed, however, to ensure that

the agency is candid about the action it is taking. See Robertson

v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989) (NEPA

“guarantees that the relevant information will be made available

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to the larger audience that may also play a role in both the

decisionmaking process and the implementation of that decision.”).

NEPA requires candor since its scheme contemplates public input

into the decisionmaking process. 

“Congress wanted each federal agency spearheading a

major federal project to put on the table, for the

deciding agency's and for the public's view, a

sufficiently detailed statement of environmental impacts

and alternatives so as to permit informed decision

making. The purpose of NEPA is to require disclosure of

relevant environmental considerations that were given a

‘hard look’ by the agency, and thereby to permit

informed public comment on proposed action and any

choices or alternatives that might be pursued with less

environmental harm.” 

Lands Council v. Powell, 395 F.3d 1019, 1027 (9th Cir. 2005); 43

C.F.R. §§ 1500.1(b); 1500.2(d). In sum, NEPA forces agencies to

explain what it is they seek to do, why they seek to do it, what

the environmental impacts may be of their proposed action, and what

alternatives might be available to the agency that might lessen

environmental impact. Without a clear “what and why” statement,

the public is kept in the dark. To put it differently, NEPA does

not prohibited the government from taking actions for what ever

political, ecological or economic reasons motivate the proposed

action. It does, however, require a transparent process so that

the public is informed about their choices. 

Defendants seek to cure the EA’s inadequacy in defining the

undertaking by arguing that the purpose for the proposed amendment

was “to clarify the public lands which are managed as Horseshoe

Ranch.” Defs. Br. at 13. Defendants’ effort is without effect.

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It is established that the court is not permitted to accept posthoc rationalizations. Gifford Pinchot Task Force v. U.S. Fish and

Wildlife Service, 378 F.3d 1059, 1071 (9th Cir. 2004) (rejecting

a post-hoc rationalization of a Biological Opinion “because such

explanations provide an inadequate basis for judicial review. . .”)

(citing Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402,

419 (1971)); California v. Norton, 311 F.3d 1162, 1176 (9th Cir.

2002) (setting aside an agency’s post hoc invocation of a

categorical exclusion because it “does not provide assurance that

the agency actually considered the environmental effects of its

action before the decision was made.”). Moreover, as I now

explain, even given the tendered rationale, the EA fails to meet

NEPA standards.

G. ALTERNATIVES 

 A discussion of alternatives is required in both an EIS and

an EA. 40 C.F.R. § 1508.9(b); Bob Marshall Alliance v. Hodel, 852

F.2d 1223, 1225 (9th Cir. 1988). The agency here considered three

different alternatives in the Draft EA. AR 00341-342. The first

alternative reduced the boundaries of the HRWA to that of the

original B.B. Miller Ranch. AR 00341. The second also reduced the

boundaries, but by a smaller amount, still including sections 21,

22, and 34 along the western border, while also containing an

acquisition interest in an area wider than that set out by the 1993

RRMP that was currently in place. AR 00342. The third, and final,

alternative was the no-action alternative which would have kept the

1993 RRMP boundaries and acquisition policies. Id.

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The selected alternative matched that of Alternative 2 but

eliminated the acquisition area originally proposed in that

alterative. AR 00124. 

1. What does the Alternatives Analysis Require?

NEPA is designed to encourage the public agency to take into

account the impacts of its decision, and the primary method that

NEPA created to encourage this is through the consideration of

alternatives. 42 U.S.C. § 4332(2)(E) (Agency is to “study,

develop, and describe appropriate alternatives to recommended

courses of action in any proposal which involves unresolved

conflicts concerning alternative uses of available resources.”);

City of Sausalito v. O'Neill, 386 F.3d 1186, 1207 (9th Cir. 2004)

(“The alternatives section is ‘the heart of the environmental

impact statement.’” (quoting 40 C.F.R. § 1502.14)). By examining

both the environmental impacts of the desired path and the impacts

of other reasonable alternatives, NEPA enables an agency, and the

public it serves, to evaluate whether the government has other

options it could take that might be less damaging to the natural

environment. Headwaters, Inc. v. Bureau of Land Management, 914

F.2d 1174, 1180 (9th Cir. 1990) (“[T]he touchstone for our inquiry

is whether an EIS’s selection and discussion of alternatives

fosters informed decision-making and informed public

participation.”) (citing California v. Block, 690 F.2d 753, 767

(9th Cir. 1982)).

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The range of alternatives to be considered and objectively

evaluated is to be determined based upon those reasonably related

to the purposes of the project. Resources Limited, 35 F.3d at

1307; City of Angoon v. Hodel, 803 F.2d 1016, 1021-22 (9th Cir.

1986). The agency has no obligation to consider alternatives which

are infeasible, or those whose effects are remote and speculative

such that they cannot be reasonably ascertained. Vermont Yankee,

435 U.S. at 551. Nor does the agency have to consider every

possible alternative, only a reasonable range sufficient to inform

the public and the agency of the possible alternative options which

could be selected. Headwaters, 914 F.2d at 1180-81. For those

alternatives not selected for detailed study, the agency is

required to “briefly discuss the reasons for their having been

eliminated.” 40 C.F.R. § 1502.14(a). 

The court reviews the agency’s selection and discussion of

alternatives under a “rule of reason” “in judging whether the

agency described those alternatives necessary to permit a reasoned

choice.” City of Angoon, 803 F.2d at 1020. The failure to

adequately select and analyze a reasonable range of alternatives

requires that an agency’s action be set aside. Citizens for a

Better Henderson v. Hodel, 768 F.2d 1051, 1057 (9th Cir. 1985)

(“The existence of a viable but unexamined alternative renders an

environmental impact statement inadequate.”); Idaho Conservation

League v. Mumma, 956 F.2d 1508, 1519 (9th Cir. 1992). 

Plaintiffs claim that the BLM failed to consider a reasonable

range of alternatives. Specifically, they raise two different

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12 Plaintiffs’ supplemental brief also, possibly

inadvertently, identifies a second alternative that would have

conflicted less with the concerns identified by Siskiyou County.

The Board stated that it is “opposed to any expansion of land area

under government control to the extent that such control undermines

the tax base, or impedes the lifestyles of those landowners whose

livelihoods remain dependant on the natural resource base.” AR

00856. It appears that a policy of only conducting land exchanges

as opposed to outright purchases would still have allowed BLM to

meet the goals set out in the 1993 RRMP, while not expanding

federal land holdings, perhaps not undermining the tax base, or

impeding the local lifestyle. 

40

purported failures in the agency’s analysis. 

First, they allege that “if the goal of the proposed RRAMP

Amendment was to quell local concerns about the impacts of federal

land ownership on the local ranching economy then a reasonable

alternative would have been to explore different kinds of property

ownership [other] than outright purchase.” Pls.’ Br. at 31. By

using conservation or public access easements they suggest that the

agency could have met the concerns of the Board of Supervisors,

without undertaking a significant change in the overall land

acquisition policy.12 Defendants fail to respond to this critique

of the EA. Rather, the agency simply argues that the “alternatives

considered by BLM were reasonably targeted to meet BLM’s need to

clarify the administrative boundary of Horseshoe Ranch.” Defs.’

Br. at 13. Defendant contends that the agency had “found that the

acquisition interest area concept was confusing to the public” but

it does not explain why the only option was to eliminate it

entirely. Id. Moreover, given that the alternative also alters

the methods for selecting property for acquisition, the action goes

well beyond the tendered goal.

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13 It is not clear whether this issue was raised in the

public comments submitted on the EA. 

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Moreover, as noted above, the agency has an obligation to

identify, and briefly explain, which, if any, alternatives were

considered for analysis but then rejected. 40 C.F.R. § 1502.14(a).

Plaintiffs point to two different “Horseshoe Ranch RMP Amendment

Meeting” minutes, from March 6, 2001 and March 13, 2001 which

briefly ask the question “What about conservation easements?” AR

00394, 00392A4.13 Although the question of conservation easements

was raised, the EA does not mention them as an alternative that was

considered but then rejected. 

The other area that the plaintiffs suggest should have been

considered as an alternative is the expansion of the HRWA boundary

to include the Jenny Creek Area of Critical Environmental Concern

and/or to include lands to the west of Interstate 5. They cite to

a number of comments submitted which urged expansion of the area.

AR 00121-22. It appears from the Final EA that BLM rejected these

alternatives as being “beyond the geographic scope of the

undertaking,” perhaps meaning the HRWA and the immediate environs.

AR 00122. This returns us to the issue of the failure to

articulate the purpose and scope of the proposed action. As noted

above, there is no way for the court to know, nor for the public

to have known the purpose and scope of the proposed action. 

Accordingly, there was no way to know what a conclusion that

something was beyond the geographic scope could mean. 

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Put directly, the instant alternatives analysis fails simply

because it is not possible for the court to determine now, nor the

public to determine then, what purpose BLM sought to accomplish.

This becomes still more problematic since if, as the government now

asserts, “clarification” was the goal, it appears that the agency

undertook a radical approach for a simple problem. Clearly, the

agency could have considered options which did not involve

amendment at all, but rather focused on a public awareness

campaign, an attempt to conduct land exchanges instead of

purchases, or other less aggressive approaches. 

Again, to prepare a proper EA an agency must first define what

the project is, what its purpose is, and the scope of the

undertaking. In this regard, it has been consistently held that

“an agency cannot define its objectives in unreasonably narrow

terms.” City of Carmel-by-the-Sea v. United States Department of

Transportation, 123 F.3d 1142, 1155 (9th Cir. 1997); Friends of

Southeast's Future v. Morrison, 153 F.3d 1059, 1066 (9th Cir. 1998)

(“An agency may not define the objectives of its action in terms

so unreasonably narrow that only one alternative from among the

environmentally benign ones in the agency's power would accomplish

the goals of the agency's action, and the EIS would become a

foreordained formality.”) (quoting Citizens Against Burlington,

Inc. v. Busey, 938 F.2d 190, 196 (D.C. Cir. 1991)).

Yet again, if the agency’s purpose was something as simple as

“clarifying” the administrative boundary of the Horseshoe Ranch,

clearly the agency should take into account the alternatives

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14 Defendants claim that plaintiffs have not plead the

failure to consider cumulative impacts. On the contrary, 

paragraph 21 of the complaint identifies BLM’s “failure to analyze

fully the cumulative impacts” on the 1993 RRMP, and the plaintiffs’

prayer for relief also specifically requested that this court order

BLM to prepare an EIS which “properly gives a ‘hard look’ at the

. . . cumulative impacts of reducing the boundaries of the HRWA

. . .” 

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adverted to above, and if rejected, the agency would be obligated

to provide an explanation as to why they were rejected. A

reasonable range of alternatives should be just that, a range of

reasonable actions which might meet the goals of the agency by

using different approaches which may reduce the environmental

impacts of the agency’s action. 

D. CUMULATIVE IMPACTS14

A cumulative impact “is the impact on the environment which

results from the incremental impact of the action when added to

other past, present, and reasonably foreseeable future actions

regardless of who undertakes such other actions. Cumulative

impacts can result from individually minor but collectively

significant actions taking place over a period of time.” 40 C.F.R.

§ 1508.7; Blue Mountains Biodiversity Project v. Blackwood, 161

F.3d 1208, 1214 (9th Cir. 1998); Kern v. Bureau of Land Management,

284 F.3d 1062, 1075 (9th Cir. 2002) (requiring a thorough

consideration of cumulative impacts in the preparation of an EA).

It is established that the cumulative impacts analysis must

include “some quantified or detailed information” since without

such information it is not possible for the court or the public to

be sure that the agency provided the hard look that is required of

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its review. Neighbors of Cuddy Mountain v. Forest Service, 137

F.3d 1372, 1379 (9th Cir. 1998). If the agency did not present

this detailed information and analysis it will be found to have

violated NEPA unless it provides a convincing justification as to

why more information could not be provided. Ocean Advocates v.

Army Corps of Engineers, 402 F.3d 846, 868 (9th Cir. 2005) (citing

Kern, 284 F.3d at 1075 and Muckleshoot Indian Tribe v. Forest

Service, 177 F.3d 800, 810 (9th Cir. 1999)). The Circuit has also

explained that this analysis is particularly important in an EA.

That is because so many more EAs than EISs are prepared, and thus

there is a higher risk of cumulative impacts resulting from the

many smaller decisions. See Native Ecosystems Council v. Dombeck,

304 F.3d 886, 896 (9th Cir. 2002); Kern, 284 F.3d at 1076. 

The cumulative impacts analysis in the EA under consideration

is a page long. It does not mention, nor discuss, any past,

present, or future projects being conducted in the area that might

result in a cumulative impact. There is no mention of whether this

amendment might impact the overall goal of the RRMP “to consolidate

public lands in areas with outstanding recreational opportunities

and unusual or imperiled biological resources” while disposing of

“existing public lands with limited recreational potential and/or

commonplace natural resources.” ROD for the 1993 RRMP, ER 070.

Plaintiffs repeatedly note that the Bureau has disposed of 16,982

acres of public lands in Siskiyou County, while only acquiring

1,657 acres for expansion of the ecologically significant parcels

identified in the RRMP. Defendants do not dispute this fact, yet

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15 Plaintiffs point to two places in the record where a BLM

decision to stop acquiring lands in the Shasta Wetlands was

mentioned. If this is true, this is the sort of fact that should

be examined in a cumulative impacts analysis. See, e.g., AR 00448;

AR 05041.

16 Plaintiffs point to a memo written by a BLM staff member

after conducting a meeting with one member of the plaintiff

organizations. The memo notes that Mr. Pace (of one of the

plaintiff organizations) and a number of other organizations and

individuals were “deeply concerned” by the disproportionate

disposal of public land in comparison with the acquisitions, and

“our current rush to appease a small segment of the local

population and certain members of the Board of Supervisors by

reducing the boundaries of Horseshoe Ranch.” The staff member

stated “I must admit, I could not argue spiritedly in our defense.”

AR 05041. 

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the EA fails to analyze how this decision might have a cumulative

impact on the ability of BLM to follow through on the compact it

made with the public. 

A cumulative impacts analysis should examine whether “the

action is related to other actions with individually insignificant

but cumulatively significant impacts.” Kern, 284 F.3d at 1075.

In this case there must, therefore, be a discussion of whether the

proposed amendment, when combined with the various public land

sales and acquisitions, might have a cumulatively significant

impact.15 The analysis should set out the past sales and

acquisitions in the area and any which may be “reasonably

foreseeable” and discuss how the current amendment of the plan,

which makes it more difficult for the agency to acquire additional

public lands, might result in a cumulative effect on the goals of

the plan and on the environment as a whole.16

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17 Defendants do not provide a citation to where in the EA

this discussion is to be found.

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Defendants again rely on the unconvincing contention that

“this administrative boundary change has no effects on the

environment, and likewise does not have an incremental impact when

added to other reasonably foreseeable action.” Defs.’ Br. at 14.

First, even if the administrative change has no direct impact, it

appears at least possible that there might be indirect impacts.

NEPA requires that an EA contain a discussion of reasonably

foreseeable future actions both within the study area as well as

in the greater area. Kern, 284 F.3d at 1075; Klamath-Siskiyou

Wildlands Center v. Bureau of Land Management, 387 F.3d 989, 994

(9th Cir. 2004). Whatever else is true, it seems relatively clear

that the proposed amendment removing the acquisition area will make

it significantly more cumbersome for BLM to acquire lands that

become available, particularly if they are not directly adjacent

to the current public lands boundary. It therefore seems at least

reasonably foreseeable that some of those lands no longer within

the acquisition area may be sold to an owner who intends to develop

the property, or to increase grazing on the land. 

The defendants maintain that they included “an analysis of

other reasonably foreseeable actions, namely the future potential

for conversion of lands near Horseshoe Ranch from private to

public.” Defs.’ Br. at 14.17 However, plaintiffs’ concern is the

failure to convert land to public ownership, and the use of lands

that remain in private ownership.

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Plaintiffs also note as an asserted deficiency, that the

cumulative impacts analysis was not undertaken for each

alternative. They do not cite authority for the proposition that

requires that the cumulative impacts be considered for each

alternative. Certain decisions do refer to an EIS which discusses

the cumulative impacts of each alternative, but they do not, in

terms, make such discussion mandatory. Others seem to limit the

discussion of cumulative effects to that of the proposed action.

See, e.g., Churchill County v. Norton, 276 F.3d 1060, 1081 (9th

Cir. 2001) (finding that the “Fish and Wildlife Service has taken

the requisite ‘hard look’ at the cumulative environmental impacts

of the action alternatives and has not violated NEPA.”); but see

Kern, 284 F.3d at 1076 (9th Cir. 2002) (“We have interpreted the

regulations to require that the EIS consider the cumulative impact

of the proposed action.” citing Edwardsen, 268 F.3d at 786-90;

Neighbors of Cuddy Mountain, 137 F.3d at 1378; City of Tenakee

Springs v. Clough, 915 F.2d 1308, 1312 (9th Cir. 1990));

Muckleshoot Indian Tribe v. U.S. Forest Service, 177 F.3d 800, 810

(9th Cir. 1999) (“Detail is therefore required in describing the

cumulative effects of a proposed action with other proposed

actions.”) In sum, the cases do not appear to require a cumulative

impacts discussion for each alternative.

The defendants argue that the EA is tiering from the EIS

prepared for the RRMP. This contention is without substance. For

an EA to be tiered off another environmental study, there must be

some reference to the analysis conducted in the first document. 

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18 Plaintiffs’ complaint that defendants included direct or

indirect impacts in the cumulative impacts section has led to an

extended debate over what is a cumulative impact, a direct impact,

or a indirect one. While there are undoubtedly significant

distinctions to be drawn between the type of impacts, there is no

question that all of them must be discussed for a NEPA review

document to be adequate. In any event, it is not clear whether the

inclusion of various types of impacts in the cumulative impact

discussion constitutes a NEPA violation. The fact that cumulative

impacts were not discussed, however, is clearly a violation.

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It is true that the regulations on tiering provide that the EA

“need only summarize the issues discussed in the broader statement

and incorporate discussion from the broader statement by reference

. . .” 40 C.F.R. § 1502.20. Defendants, however, point to no

reference or incorporation of the analysis from the EIS to suggest

that this is anything more than another fatally defective post-hoc

rationalization. Moreover, as plaintiffs contend, the current

action is amending the plan for which the EIS was prepared. While

this would not necessarily preclude tiering to some of the

analysis, the EA would have to explain what altered circumstances

justify the change.18

E. BIOLOGICAL CONNECTIVITY CORRIDOR

Plaintiffs claim that the defendants had an obligation to

consider the value of the Horseshoe Ranch Area as a biological

connectivity corridor. Plaintiffs’ opening brief plainly sets out

three different places in the administrative process where the

issue was brought to BLM’s attention. First, the California

Wilderness Coalition, and Felice Pace of KWFA raised the issue in

the scoping comments. AR 04239, 04369-70. The issue was raised

again in comments on the Draft EA by several different parties,

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19 The memo prepared following the meeting by BLM staff

specifically notes Mr. Pace’s concerns on the “regional

connectivity of the planning area to other major public land

holdings to the east, west and north.” AR 05040. 

20 Defendants’ primary response is to claim that the

biological connectivity corridor concerns were not raised in the

complaint and “must first be asserted in the administrative

process.” Defs.’ Br. at 15. As noted in the text, the defendants

are simply wrong. Indeed, this is constant and unjustified

assertion of the defense which leads the court to worry about any

assertion they make about the record. Besides being wrong on the

facts, the Ninth Circuit has held that the agency cannot simply

rely on environmental groups to bring new information to the

attention of the government agency, whose responsibility it is to

be aware of the environmental impact of its actions. See Friends

of the Clearwater v. Dombeck, 222 F.3d 552, 559 (9th Cir. 2000)

(citing City of Davis v. Coleman, 521 F.2d 661, 667 (9th Cir.

1975)).

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including the SMWC, the World Wildlife Fund, and the KWFA. AR

01050-52, 10098-01101, 01102-03. Finally, it was raised in a faceto-face meeting with the BLM and Felice Pace.19 The issue was also

raised in ¶ 15 of the complaint which states that “[t]he HRWA

provides vitally important biological connectivity functions and

habitat values for wintering deer, elk, and other wildlife living

in the area and moving between the nationally important CascadeSiskiyou National Monument area and the Klamath River

headwaters.”20 

Plaintiffs point to a portion of the Northwest Forest Plan

amending the 1993 RRMP which “directs the BLM to evaluate carefully

the values of the Soda Mountain area as a biological connectivity

corridor and propose any additional management protection

necessary, include a special designation, through the BLM resource

management plan, to protect these values.” Northwest Forest Plan

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at 30, ER 126. Given the discussion in the DEIS that was prepared

for the creation of the Cascade Siskiyou Ecological Emphasis Area,

BLM staff at the very least was charged with knowledge of the value

of the area as a biological connectivity corridor and thus was

required to consider its value as such. Any discussion of the area

as a biological connectivity corridor should have included

consideration of whether the amendment of the plan would, either

directly or indirectly, impact the environmental vitality of the

corridor. 

The defendants do not suggest that they considered this issue.

Instead, defendants again rely on the assertion that “the redrawing

of the RMP Horseshoe Ranch boundary has no environmental

consequences, either to the public lands of Horseshoe Ranch or the

private lands surrounding it.” Defs.’ Br. at 15. This assertion

cannot carry the day. FLMPA requires the agency to consider the

impacts that any amendment has on the plan. 43 C.F.R. § 1610.5-5.

An unsupported assertion of no impact fails to meet the regulatory

requirement. At the very least, it was necessary that BLM consider

whether the altered regimen for acquisition would effect

acquisition and thereby effect the vitality of the corridor.

F. FLPMA

Under the FLPMA, “[i]n managing the public lands the Secretary

shall, by regulation or otherwise, take any action necessary to

prevent unnecessary or undue degradation of the lands.” 43

U.S.C.A. § 1732(b). The plaintiffs claim that this is the

“substantive cornerstone of FLPMA’s otherwise largely procedural

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21 Given SUWA, it is important to recognize the narrow nature

of plaintiffs’ claim. They do not argue that a particular result

is mandated, they merely argue that an analysis is mandated.

22 Plaintiffs maintain that the RRMP provided that grazing

would only be allowed in the Horseshoe Ranch Wildlife Area if it

was found to be beneficial to deer habitat. The court assumes the

language noted in the text is the language they rely on for this

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framework as it intersects with NEPA.” Pls.’ Br. at 37. Section

1701 further states that it is

the policy of the United States that . . . (8) the

public lands be managed in a manner that will protect

the quality of scientific, scenic, historical,

ecological, environmental, air and atmospheric, water

resource, and archeological values; that, where

appropriate, will preserve and protect certain public

lands in their natural condition; that will provide food

and habitat for fish and wildlife and domestic animals;

and that will provide for outdoor recreation and human

occupancy and use. . .

43 U.S.C.A. § 1701. Plaintiffs claim that these policy statements,

along with the broader management purposes set out in the 1993 RRMP

require that BLM analyze whether the proposed amendment will create

unnecessary or undue degradation of the public lands.21 

They point to one area in particular in the proposed plan

which they believe demonstrates possible unnecessary or undue

degradation, or at the very least a contradiction in management

policy. The selected alternative allows for grazing on sections

21, 22, and 34 of the HRWA and not on the rest of the public land.

The 1993 RRMP asserted that “[a]ll Animal Unit Months (AUMs) are

available for wildlife unless BLM determines that domestic

livestock grazing management would be beneficial to enhance

wildlife habitat.”22 RRMP at 34, ER 077. BLM has not provided any

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explanation of why grazing would be beneficial in the specified

areas but not in the rest of the HRWA, which the EA states has the

same ecological properties. 

Plaintiffs further note that the management policy for

Alternative 1 and the selected alternative would have the specified

sections managed under the same policy of multiple use. However,

the EA states that management under Alternative 1 could result in

“fewer winter deer, reduced vigor, and less fawn survival and

recruitment.” The same management policy under the selected

alternative, however, does not result in any finding of a

significant impact, or any impact for that matter.

Plaintiffs maintain that the policy of allowing grazing

without a finding of benefit to wildlife, violates NEPA’s “hard

look” requirement, and violates the unnecessary or undue

degradation standard of FLPMA. They also claim that BLM failed to

provide a rational connection between the facts found and the

decision made. Gifford Pinchot Task Force v. U.S. Fish and

Wildlife Service, 378 F.3d 1059, 1065 (9th Cir. 2004). 

Defendants do not respond to these contentions. Rather, they

again argue that the amendment does not cause any on the ground

changes to the management of Horseshoe Ranch. Even if this were

true, it does not explain the contradiction in the conclusions

noted above. With regards to the unnecessary or undue degradation

standard, the defendants are correct that the standard only applies

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23 The last two sentences are also difficult to follow. On

the one hand, the BLM says that it will no longer pursue

acquisitions, but then say that the amendment continues to allow

for more acquisitions. 

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to the public lands. The decision at bar, at the very least

appears to make it more difficult to acquire private lands. That

difficulty while it may not have a direct effect on the public

lands, may, as discussed above, have an indirect effect. 

Accordingly, the Bureau is obligated to consider in its EA whether

there will be any unnecessary or undue degradation to the lands as

a result of this policy change. 

Plaintiffs point to an additional contradiction in the EA.

The introductory section of the Final EA states the following:

BLM has publicly expressed its intention to balance the

approximately 17,000 acres of public land transferred

from Federal ownership in Siskiyou County since 1993 by

acquisitions of environmentally sensitive lands in other

parts of the County. For this reason, and in response

to a 1999 request by Siskiyou County, BLM eliminates the

extensive area identified in alternatives 2 and 3 for

potential federal acquisition of private lands. BLM

does not actively pursue new acquisitions in connection

with HRWA. However, the amendment continues to allow

for acquisition from willing sellers of private lands

contiguous to HRWA that also meet the criteria for deer

winter range.

AR 00005. Plaintiffs describe this as an Orwellian statement

because it states that it will balance the significant amount of

public land disposed of in the County by removing a significant

acquisition area from further consideration.23 Defendants, again,

do not respond. 

The court must find that, overall, the EA fails to draw

rational connections between the facts found and the decision made.

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Oregon Natural Resources Council v. Lowe, 109 F.3d 521, 526 (9th

Cir. 1997); 5 U.S.C. § 706(2)(A). Plaintiffs have pointed to two

plain internal contradictions in the EA, neither of which the

defendants have chosen to respond to. This is compounded by the

absence of a clear purpose statement in the EA. In order to

adequately meet the requirements of NEPA and FLPMA, the Bureau

needs to undertake a more considered, transparent, and in-depth

review of the potential environmental impacts of the proposed

amendment. 

G. FEDERAL ADVISORY COMMITTEE ACT

Defendants’ motion for summary judgment seeks to dismiss

plaintiffs’ fourth claim for relief which alleges a failure to

include all interested parties in the initial scoping process for

the RRMP amendment. Plaintiffs have not raised the issue in their

own motion nor have they responded to it in their reply and

opposition. It appears, thus, that plaintiffs have waived this

claim and it therefore will be dismissed. 

IV.

CONCLUSIONS AND ORDERS

The defendants have failed to conduct adequate environmental

review as required by FLPMA and NEPA. Therefore, summary judgment

will be granted for plaintiffs and denied for defendants on the

question of compliance with FLPMA and NEPA. BLM shall return to

the drawing board and prepare either an adequate EA or a complete

EIS which contains a clear statement of purpose and need, which

fully analyzes the direct, indirect and cumulative impacts of the

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amendment, and which examines a complete set of reasonable

alternatives which are tailored to meet the goals set out in the

purpose and need statement. 

The Clerk is directed to ENTER judgment and CLOSE the case.

IT IS SO ORDERED. 

DATED: March 23, 2006.

/s/Lawrence K. Karlton 

LAWRENCE K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT

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