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Fred Gardner; and Concerned v. United States Bureau of Land

April 7, 2011

FRED GARDNER; AND CONCERNED CITIZENS FOR LITTLE CANYON MOUNTAIN, AN UN INCORPORATED ASSOCIATION, PLAINTIFFS-APPELLANTS,
v.
UNITED STATES BUREAU OF LAND MANAGEMENT, DEFENDANT-APPELLEE.



D.C. No. 2:07-cv-01722-SU Appeal from the United States District Court for the District of Oregon Garr M. King, Senior District Judge, Presiding

The opinion of the court was delivered by: Judge Milan D. Smith, Jr.

FOR PUBLICATION

OPINION

Argued and Submitted January 10, 2011-Seattle, Washington

Before: Susan P. Graber and Milan D. Smith, Jr., Circuit Judges, and Roger T. Benitez,*fn1 District Judge.

OPINION

M. SMITH, Circuit Judge:

Plaintiffs-Appellants Fred Gardner and Concerned Citizens for Little Canyon Mountain (sometimes collectively Gardner) brought suit for declaratory and injunctive relief pursuant to the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706, seeking to compel Defendant-Appellee United States Bureau of Land Management (BLM) to prohibit off-road vehicle use of Oregon's Little Canyon Mountain area. The district court granted summary judgment to the BLM. On appeal, Gardner asserts that the BLM's failure to close Little Canyon Mountain to off-road vehicle use violated the Federal Land and Policy Management Act of 1976 (FLPMA), 43 U.S.C. §§ 1701-1785, and off-road vehicle regulations, 43 C.F.R. pts. 8340-8342.

We have jurisdiction under 28 U.S.C. § 1291. We affirm. We hold that the BLM did not, and was not required to, make a finding that the off-road vehicle use of which Gardner complains had caused "considerable adverse effects" on the resources enumerated under 43 C.F.R. § 8341.2(a) and, accordingly, we cannot compel the BLM to act to close Little Canyon Mountain to off-road vehicle use. We also hold that the BLM's denial of Gardner's petition to close Little Canyon Mountain to off-road vehicle use was not arbitrary and capricious.

FACTUAL AND PROCEDURAL BACKGROUND

Little Canyon Mountain is located in Grant County, Oregon, in the BLM's Prineville District. The BLM manages approximately 2,500 acres of land in Little Canyon Mountain, which is bordered by private property and the Strawberry Mountain Wilderness.

Since 1985, when the John Day Resource Management Plan (John Day RMP) was issued, Little Canyon Mountain has been designated as "open use" year-round, thereby permitting off-road vehicles to use the area. There are at least five miles of documented trails that are accessible to smaller off-road vehicles (less than fifty inches wide), and at least twenty-six miles of road accessible to larger off-road vehicles, such as trucks, within Little Canyon Mountain. Land within Little Canyon Mountain has been described as steep terrain with high-clay soil that ruts easily. Among its features is a two-acre area, once used for mining, known as "the pit," which is especially popular with off-road vehicle users.

In 2003, the BLM undertook an environmental assessment to ascertain the likely effects on Little Canyon Mountain of a proposed project designed to decrease fire risk and improve forest health by reducing fuels. The environmental assessment predicted that the proposed fuels-reduction project would likely increase off-road vehicle use in Little Canyon Mountain and could lead, in five to ten years, to "noticeable" impacts in the form of erosion, new trail routes, and a disturbance of wildlife. To mitigate the potential impact of increased off-road vehicle use, the proposal, as ultimately adopted, suggested limiting access to "the pit" by vehicles more than fifty inches wide. The proposal also created a forested buffer around the pit to "provide a sight and sound barrier between the pit and surrounding areas." After the fuels-reduction project was implemented, the BLM received numerous complaints from adjacent land owners regarding off-road vehicle use in and around the pit.

Gardner has lived adjacent to Little Canyon Mountain for almost twenty years. After the fuels-reduction project was implemented, he complained to the BLM about a dramatic increase in year-round off-road vehicle use, including at night and on weekdays. Concerned Citizens is an unincorporated association whose members are local land owners, miners, and grazers who claim to have been adversely affected by off-road vehicle use in Little Canyon Mountain. Gardner and Concerned Citizens filed a petition with the BLM in June 2006 asking the BLM "to immediately [ ] close BLM land on Little Canyon Mountain to all recreational [off-road vehicle] use."

Christina Welch, the BLM's Field Manager in charge, responded by letter to Gardner's petition. The letter stated that Little Canyon Mountain could be closed pursuant to 43 C.F.R. § 8341.2(a) only if the offending off-road vehicle use was causing "considerable adverse effects." Welch further indicated that she was not aware of any "significant, increased resource damage" except that caused by pickup trucks.

Welch's letter also stated that the BLM "would welcome any specific, quantifiable information [Gardner] can provide" and requested that Gardner "show [the BLM] specific instances and locations of significant problems." The BLM further encouraged Gardner and other ...


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