Case 1:10-cv RMU Document 1 Filed 11/09/10 Page 1 of 43 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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1 Case 1:10-cv RMU Document 1 Filed 11/09/10 Page 1 of 43 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Southern Utah Wilderness Alliance ) 425 East 100 South ) Salt Lake City, UT ) (801) , ) Case No. ) The Wilderness Society ) 1615 M Street, NW ) Washington, DC ) (202) , ) ) National Parks Conservation Association ) th Street, NW, Suite 300 ) Washington, DC ) (202) , ) ) Grand Canyon Trust ) 2601 N. Fort Valley Road ) Flagstaff, AZ ) (928) , ) ) Sierra Club ) 85 Second Street, 2nd Floor ) San Francisco, CA ) (415) , ) ) Center for Native Ecosystems ) 1536 Wynkoop St., Suite 303 ) Denver, CO ) (303) , ) ) Utah Rivers Council ) 1055 East 2100 South, # 207 ) Salt Lake City, UT ) (801) , ) ) Great Old Broads for Wilderness ) 649 East College Drive ) Durango, CO ) (970) , ) ) Plaintiffs, )

2 Case 1:10-cv RMU Document 1 Filed 11/09/10 Page 2 of 43 ) v. ) ) United States Department of the Interior ) 1849 C Street, NW ) Washington, DC ) (202) , ) ) United States Bureau of Land Management ) 1849 C Street, NW ) Washington, DC ) (202) , ) ) Wilma Lewis, in her official capacity ) as Assistant Secretary for Lands and ) Minerals Management of the United States ) Department of the Interior ) 1849 C Street, NW ) Washington, DC ) (202) , ) ) Defendants. ) ) COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF I. INTRODUCTION 1. The Monticello, Kanab, and Richfield field offices of the Bureau of Land Management (BLM) oversee 4.5 million acres of public lands in central and southern Utah. These lands include large portions of Utah s magnificent red rock wilderness, wild stretches of rivers, irreplaceable archeological sites and cultural resources, and endangered and sensitive wildlife and plants. They are also adjacent to world famous national parks and monuments, including Canyonlands, Bryce Canyon, Capitol Reef, and Zion national parks; Glen Canyon National Recreation Area; and Hovenweep, Natural Bridges, and Grand Staircase-Escalante national monuments. 2

3 Case 1:10-cv RMU Document 1 Filed 11/09/10 Page 3 of This suit challenges the BLM s approval of three resource management plans (RMPs) and travel plans for the Monticello, Kanab, and Richfield Planning Areas. The RMPs set the framework under which future land use decisions will be made for these areas. In addition to setting the framework for future decisions, the RMPs include travel plans that authorize offroad vehicle (ORV) and other motor vehicle use on approximately 8,500 miles of dirt roads and trails and in five cross-country travel areas. In a desert environment that is easily scarred and slow to heal, wilderness, soils, cultural resources, and wildlife will be affected by these actions for many decades to come. 3. Several federal laws provide a framework for the protection of public lands like those at issue here. The National Environmental Policy Act (NEPA), 42 U.S.C et seq., requires the BLM to document and inform the public of the environmental impacts of major actions like the adoption of these management plans. The Federal Land Policy and Management Act (FLPMA), 43 U.S.C et seq., requires the BLM to maintain an inventory of resources and values of the public lands, to ensure compliance with federal and state pollution control laws, and to prioritize the designation and protection of areas of critical environmental concern (ACECs) such as locales with sensitive wildlife populations, important scenic vistas, or irreplaceable cultural artifacts. 43 U.S.C. 1702, Long-standing Executive Orders and the agency s ORV regulations, 43 C.F.R. pt. 8340, require the BLM to locate ORV routes to minimize impacts to natural and cultural resources. The National Historic Preservation Act (NHPA), 16 U.S.C. 470 et seq., requires the agency to consult and take action to protect cultural and historic resources. The Wild and Scenic Rivers Act (WSRA), 16 U.S.C et seq., requires BLM to identify and evaluate potential rivers, streams, and river and stream segments, and designate them as eligible and 3

4 Case 1:10-cv RMU Document 1 Filed 11/09/10 Page 4 of 43 then suitable for wild and scenic designation. U.S. Department of Interior, Secretarial Order No (2001) requires the BLM to ensure that climate change impacts are taken into account in connection with Departmental planning and decision making, including when preparing multi-year management plans such as RMPs. Secretarial Order No confirmed the Interior Department s commitment to evaluating climate change. As set out in the rest of this complaint, BLM violated each of these statutes, regulations, and orders in approving the RMPs and travel plans for the Monticello, Kanab, and Richfield areas. The agency s decisions should be reversed, its implementation of ORV route designations enjoined, and the matter remanded to the agency for further proceedings. II. JURISDICTION AND VENUE 4. This court has jurisdiction over this action pursuant to 28 U.S.C (federal question) and the Administrative Procedure Act (APA), 5 U.S.C Venue is proper in this Court pursuant to 28 U.S.C. 1391(e) because the U.S. Department of the Interior, the U.S. Bureau of Land Management, and Assistant Secretary for Lands and Minerals Management, Wilma Lewis, reside in Washington, D.C. The records of decision approving the challenged RMPs and ORV travel plans at issue in this complaint were all signed by Defendant Wilma Lewis predecessor, C. Stephen Allred, the former Assistant Secretary of the Interior for Lands and Minerals Management, and BLM officials in Washington, D.C. were intimately involved in the oversight and development of each of the RMPs. Additionally, Plaintiffs The Wilderness Society and National Parks Conservation Association are headquartered in Washington, D.C., and Plaintiffs Southern Utah Wilderness Alliance and Sierra Club maintain offices in Washington, D.C. 4

5 Case 1:10-cv RMU Document 1 Filed 11/09/10 Page 5 of 43 III. PARTIES 6. Plaintiff SOUTHERN UTAH WILDERNESS ALLIANCE (SUWA) is a non-profit corporation and environmental membership organization dedicated to the sensible management of all public lands within the State of Utah and the preservation and protection of plant and animal species and Utah s remaining wild lands. SUWA has offices in Utah and in Washington, D.C. SUWA has members in all fifty states and several foreign countries. SUWA is also a charter member of the Utah Wilderness Coalition, a union of over 200 local and national organizations dedicated to the passage of America s Red Rock Wilderness Act, H.R. 1925/S. 799, 111th Cong. (2009), which would designate approximately 9.5 million acres of stunning BLM-managed land in Utah as wilderness. SUWA brings this action on its own behalf and on behalf of its members. 7. Plaintiff THE WILDERNESS SOCIETY (TWS) is a non-profit corporation and national leadership organization founded in 1935, with more than 500,000 members and supporters nationwide. The Wilderness Society's mission is to protect wilderness and inspire Americans to care for our wild places. TWS works to develop a network of wild lands through public education, scientific analysis, and advocacy. TWS s goal is to ensure that future generations will enjoy the clean air, water, wildlife, beauty, and opportunities for recreation and renewal that pristine deserts, mountains, forests, and rivers provide. TWS views protecting wilderness quality and other sensitive Utah BLM-managed lands as vital to achieving its mission. TWS has worked for years to protect BLM wilderness quality and other sensitive lands in Utah. TWS brings this action on its own behalf and on behalf of its members. 5

6 Case 1:10-cv RMU Document 1 Filed 11/09/10 Page 6 of Plaintiff NATIONAL PARKS CONSERVATION ASSOCIATION (NPCA) is a nonprofit corporation and national organization whose primary mission is to address major threats facing the National Park System. NPCA is the leading voice of the American people in protecting and enhancing the National Park System and has more than 325,000 members throughout the United States. NPCA plays a crucial role in ensuring that America s national parks are protected in perpetuity by undertaking a variety of efforts, including: advocating for the parks and the National Park Service, educating decision-makers and the public about the importance of preserving the parks, lobbying members of Congress to uphold the laws that protect the parks and in support of new legislation to address threats to the parks, and assessing the health of the parks and park management to better inform NPCA s members and the general public about the state of the park system. NPCA brings this action on its own behalf and on behalf of its members. 9. Plaintiff GRAND CANYON TRUST (Trust) is a non-profit corporation and conservation organization that advocates for sensible solutions to resource management problems on the Colorado Plateau. The Trust has worked since its inception in 1985 to protect and restore the spectacular landscapes, flowing rivers, clean air, diversity of plants and animals, and areas of beauty and solitude that characterize the Colorado Plateau. The Trust has offices in Flagstaff, Arizona and Moab, Utah and members nationwide. The Trust brings this suit on its own behalf and on behalf of its members. 10. Plaintiff the SIERRA CLUB is a non-profit corporation with its principal place of business in San Francisco, California. The Sierra Club is a national conservation organization with a membership of approximately 560,000. The Utah Chapter is the Utah division of the Sierra Club and has over 6,000 members. The Sierra Club s purposes include 6

7 Case 1:10-cv RMU Document 1 Filed 11/09/10 Page 7 of 43 protecting and enhancing the natural resources and human environment of the United States and the earth, and exploring, enjoying, and preserving those resources. Specifically, the Sierra Club advocates responsible management of public lands resources in the state of Utah, including the lands governed by the RMPs. The Utah Chapter has a long history of public education and advocacy to protect such resources. The Sierra Club is a charter member of the Utah Wilderness Coalition. The Sierra Club brings this action on its own behalf and on behalf of its members. 12. Plaintiff CENTER FOR NATIVE ECOSYSTEMS (CNE) is a non-profit corporation and public interest conservation organization located in Denver, Colorado dedicated to the conservation and recovery of native species and ecosystems across Utah, Colorado, and Wyoming. To further its mission, CNE participates in administrative processes, legal actions, public outreach, organizing, and education to protect imperiled species and prevent their extinction. CNE commented extensively on the three RMPs at issue in this case. CNE brings this action on its own behalf and on behalf of its members. 13. Plaintiff UTAH RIVERS COUNCIL (URC) is a non-profit corporation and organization with approximately 1,500 members in Utah. URC s mission is to protect and restore Utah s clean water sources for today s citizens, future generations, and wildlife. To further its mission, URC participated in the planning processes for the Monticello, Kanab, and Richfield RMPs by submitting comments and protests on all of these plans. 14. Plaintiff GREAT OLD BROADS FOR WILDERNESS (Great Old Broads) is a nonprofit corporation with over 1,800 members nation-wide, many of whom reside in Utah. Great Old Broads was formed in part to protect the interests of senior populations who enjoy access to roadless areas without mechanized means of transportation and their associated 7

8 Case 1:10-cv RMU Document 1 Filed 11/09/10 Page 8 of 43 impacts on the environment. Great Old Broads commented on and protested the RMPs at issue in this case. Great Old Broads brings this action on its own behalf and on behalf of its members. 15. Plaintiffs members use and enjoy public lands in and throughout Utah for a variety of purposes, including scientific study, recreation, wildlife viewing, hunting, aesthetic appreciation, photography, and their financial livelihoods. These members frequently visit and recreate (e.g., boating, camping, hiking, birding, sightseeing, enjoying solitude, viewing cultural resources) throughout the public lands and waterways governed by the Monticello, Kanab, and Richfield RMPs, and use the specific areas opened to ORV use by the RMPs. Plaintiffs members also regularly visit and enjoy Utah s spectacular national parks, monuments, wilderness study areas, wilderness character areas, and other remarkable red rock public lands, including Zion, Bryce Canyon, Capitol Reef, and Canyonlands national parks; Hovenweep, Natural Bridges, and Grand Staircase-Escalante national monuments; and Glen Canyon National Recreation Area. 16. Plaintiffs and their members interests will be directly affected and irreparably harmed by decisions made in the Monticello, Kanab, and Richfield RMPs and ORV travel plans. The RMPs and travel plans authorize ORV use and other activities that will degrade Utah s air quality, including air quality within prized national parks and monuments, and destroy and degrade numerous cultural artifacts. They will also significantly affect the wilderness quality, scenic values, and other resources of the public lands at stake in this suit. This environmental and cultural degradation will adversely impact Plaintiffs members recreational, cultural, scenic, and scientific interests in these lands. Plaintiffs and their members are also harmed by BLM s failure to address these impacts through proper NEPA 8

9 Case 1:10-cv RMU Document 1 Filed 11/09/10 Page 9 of 43 and NHPA analysis; by the agency s non-compliance with applicable regulations and executive orders; and by its failure to protect important natural and cultural resources through protection and designation of ACECs, as required by FLPMA, and through designation of suitable Wild and Scenic River segments, as required by the WSRA. Plaintiffs and their members have a substantial interest in seeing that the BLM complies with these laws and in participating in the legally-required public processes. 17. Defendant U.S. DEPARTMENT OF THE INTERIOR is the federal agency responsible for managing just under 500 million acres of federal public lands for a variety of competing resources, including protection of the natural and human environment. The Department of the Interior is required to comply with a host of federal statutes and regulations in its management of the public lands, including NEPA, FLPMA, NHPA, and the WSRA. 18. Defendant U.S. BUREAU OF LAND MANAGEMENT is an agency within the U.S. Department of the Interior that is directly responsible for carrying out the Department s obligations under statutes and regulations governing resource planning and ORV route designations, including NEPA, FLPMA, NHPA, and the WSRA. BLM manages approximately 245 million acres of public lands across the nation and roughly 23 million acres in Utah. 19. Defendant WILMA LEWIS is sued in her official capacity as Assistant Secretary of the United States Department of the Interior for Lands and Minerals Management. In that capacity, she is responsible for ensuring that the agencies within the Department, including BLM, comply with all applicable laws and regulations. Ms. Lewis s predecessor, C. Stephen 9

10 Case 1:10-cv RMU Document 1 Filed 11/09/10 Page 10 of 43 Allred signed the records of decision approving the Monticello, Kanab and Richfield RMPs and ORV travel plans. IV. LEGAL FRAMEWORK A. THE NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) 20. Congress enacted NEPA to promote efforts which will prevent or eliminate damage to the environment. 42 U.S.C NEPA implements the precautionary principle to think first, then act. 21. To fulfill this goal, NEPA requires federal agencies to prepare an environmental impact statement (EIS) for all major Federal actions significantly affecting the quality of the human environment. 42 U.S.C. 4332(2)(C); 40 C.F.R An EIS must provide [a] full and fair discussion of significant environmental impacts associated with a federal decision and inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment. 40 C.F.R The EIS must include a discussion of the direct, indirect, and cumulative impacts for each reasonable alternative, id , and must identify any adverse environmental effects which cannot be avoided should the proposal be implemented, 42 U.S.C. 4332(2)(C)(ii). 23. The discussion of alternatives to the proposed action is the heart of the NEPA process. 42 U.S.C. 4332(2)(C)(iii), (E); 40 C.F.R This discussion is intended to provide a clear basis for choice among options by the decisionmaker and the public. 40 C.F.R Federal agencies must [r]igorously explore and objectively evaluate all reasonable alternatives. Id (a). 10

11 Case 1:10-cv RMU Document 1 Filed 11/09/10 Page 11 of 43 B. THE NATIONAL HISTORIC PRESERVATION ACT (NHPA) 24. Congress enacted the NHPA in 1966 to implement a broad national policy encouraging the preservation of the country s historic and cultural resources. 16 U.S.C. 470(b), The heart of the NHPA is Section 106, which prohibits federal agencies from approving any federal undertaking, including the issuance of any license, permit, or approval, without first considering the effects of the action on historic properties or cultural artifacts that are eligible for inclusion in the National Register of Historic Places. 16 U.S.C. 470f, 470w(7); 36 C.F.R (y). 26. The Advisory Council on Historic Preservation (ACHP) has promulgated regulations implementing Section 106 that are binding on all other federal agencies. 36 C.F.R. pt The goal of Section 106 consultations is to identify historic properties potentially affected by the undertaking, assess its effects and seek ways to avoid, minimize or mitigate any adverse effects. 36 C.F.R (a). 27. Federal agencies must involve the State Historic Preservation Officer (SHPO), Native American Tribes, and the public in each stage of a Section 106 consultation. 36 C.F.R , 800.3(f)(2), 800.4(b)-(c), (b)(2)(i). 28. Prior to engaging in any undertaking, at a minimum, an agency must: (1) identify the area of potential effects; (2) review existing information on historic properties within this area, including possible historic properties not yet identified; (3) seek information about historic properties from relevant parties; (4) evaluate the undertaking s potential effects on historic properties; and (5) develop and evaluate alternatives or modifications to the 11

12 Case 1:10-cv RMU Document 1 Filed 11/09/10 Page 12 of 43 undertaking that could avoid, minimize, or mitigate adverse effects. 36 C.F.R Under the NHPA, federal agencies may negotiate a programmatic agreement to govern consultation on a particular program. 36 C.F.R (b), see also id (a)(2). Any such agreement must be consistent with the NHPA and its implementing regulations. Id (a). BLM has entered into a programmatic agreement and a protocol agreement governing its activities in Utah. C. FEDERAL LAND POLICY AND MANAGEMENT ACT (FLPMA) 1. Resource Management Planning 30. FLPMA Section 201 directs the BLM to inventory its lands and their resource values, including outdoor recreation and scenic values. 43 U.S.C. 1711(a). FLPMA Section 202 requires that BLM develop and maintain land use plans, relying on its inventory, for each BLM planning area. 43 U.S.C. 1712(a), (c)(4). BLM s land use plans, known as RMPs, are supposed to provide an orderly, public process for balancing competing demands such as commercial exploitation, recreation, and environmental protection. Id. 1712; 43 C.F.R RMPs provide a blueprint for how public lands are managed. For example, under the authority of FLPMA and other statutes and regulations, they allocate lands as available for oil and gas leasing and impose conditions on that leasing, identify areas that are opened or closed to motorized vehicle use, designate areas of critical environmental concern, and recommend protection of wild and scenic river segments and protection for lands with wilderness character. 12

13 Case 1:10-cv RMU Document 1 Filed 11/09/10 Page 13 of FLPMA mandates that in adopting an RMP, BLM give priority to the designation and protection of areas of critical environmental concern or ACECs. 43 U.S.C. 1712(c)(3). ACECs are areas where special management attention is required... to protect and prevent irreparable damage to important historic, cultural, or scenic values, fish and wildlife resources or other natural systems or processes. Id. 1702(a). ACECs must possess both relevance and importance as those terms are defined in BLM regulations. 43 C.F.R (a). If BLM does not designate an area as an ACEC, it must nonetheless protect through other means the resources that meet the identified relevance and importance criteria and require special management attention. 33. Future site-specific actions within the planning area must be consistent with the relevant RMP. 43 U.S.C. 1732(a); 43 C.F.R (b). 34. BLM must prepare an EIS during the RMP planning process: [a]pproval of a resource management plan is considered a major Federal action significantly affecting the quality of the human environment. The environmental analysis of alternatives and the proposed plan shall be accomplished as part of the [RMP] planning process and, wherever possible, the proposed plan and related [EIS] shall be published in a single document. 43 C.F.R Compliance with Air Quality Standards 35. When developing RMPs, BLM is required under FLPMA to provide for compliance with applicable pollution control laws, including State and Federal air... standards. 43 U.S.C. 1712(c)(8). In addition, prior to approving any land use authorization on BLM lands, the agency must [r]equire compliance with air... quality standards established pursuant to applicable Federal or State law. 43 C.F.R (b)(3). 13

14 Case 1:10-cv RMU Document 1 Filed 11/09/10 Page 14 of Wilderness 36. FLPMA provides protection for wilderness-quality lands as part of land use planning through two avenues. First, as noted above, FLPMA Section 202 provides for protecting areas with wilderness character through resource management planning on all BLM lands. To accomplish this protection and develop an RMP, BLM must first inventory the resources of the public lands, including the wilderness resource. Such inventories are required on a continuing basis by FLPMA Section U.S.C Second, FLPMA Section 603 provides an additional mandate that applies only to lands eligible for protection under the Wilderness Act. 43 U.S.C Section 603(a) set a fifteen-year deadline for determining on the basis of an inventory carried out under Section 201 which BLM lands are eligible for wilderness designation. Id. 1782(a). In addition to setting the deadline for BLM s initial Section 201 wilderness inventory, Section 603(a) required BLM to issue a formal recommendation to the President concerning the suitability of these areas for wilderness protection. Id. Section 603(b) required that by 1993 the President tell Congress which lands he believes should be designated as wilderness. Id. 1782(b). 38. To safeguard Congress s prerogative to designate the wilderness-eligible lands (known as wilderness study areas or WSAs ) as wilderness, Section 603(c) requires BLM to manage WSAs so as not to impair their wilderness suitability. 43 U.S.C. 1782(c). Shortly after FLPMA s passage, BLM adopted an Interim Management Policy for Lands Under Wilderness Review (IMP), which details how the agency would manage WSAs to satisfy Section 603(c) s nonimpairment mandate. 14

15 Case 1:10-cv RMU Document 1 Filed 11/09/10 Page 15 of Section 603 applies only to roadless areas of five thousand acres or more and roadless islands. 43 U.S.C. 1782(a). However, BLM has also relied on its general land use planning authority under Section 202 of FLPMA to create scores of WSAs of less than five thousand acres. Thus, BLM lands include both Section 603 WSAs and Section 202 WSAs. 40. Management for both WSA types is described in the IMP. Under the IMP, Section 202 and Section 603 WSAs are managed in nearly, though not exactly, identical fashion. 41. BLM claims that it lacks authority to designate new WSAs under a September 2005 settlement agreement reached between the State of Utah, the Utah School and Institutional Trust Lands Administration, the Utah Association of Counties, and BLM (hereinafter Utah Wilderness Settlement ). See Utah v. U.S. Dep t of Interior, 535 F.3d 1184 (10th Cir. 2008) (discussing settlement). In this settlement, the agency agreed that it would not establish, manage or otherwise treat public lands, other than Section 603 WSAs and Congressionally designated wilderness, as WSAs or as wilderness pursuant to the Section 202 process absent congressional authorization. Id. at Conservation groups challenged the Utah Wilderness Settlement, but the Tenth Circuit dismissed the groups facial challenge as unripe and declared that any challenge must be presented in the context of a particular agency action relying on the settlement. Utah, 535 F.3d at D. OFF-ROAD VEHICLE REGULATIONS 43. BLM s land management authority is also governed by its 1979 ORV regulations, 43 C.F.R , which incorporate the requirements set out in Executive Order No , 37 Fed. Reg (Feb. 8, 1972), as amended by Exec. Order No , 42 Fed. 15

16 Case 1:10-cv RMU Document 1 Filed 11/09/10 Page 16 of 43 Reg (May 24, 1977). Under these regulations, BLM must minimize ORV damage to soil, watersheds, vegetation, air quality, wildlife and wildlife habitat, and other public resources. 43 C.F.R (a)-(b). BLM must also minimize conflicts between ORV use and other recreational opportunities. Id (c). The agency may not allow ORV trails in designated wilderness or primitive areas and must prevent impairment of wilderness suitability. Id (a), (d). ORV trails shall not be located in natural areas unless there is a determination that ORV use will not adversely affect their natural, esthetic, scenic, or other values. Id (d). Where ORVs are causing or will cause negative impacts to soil, vegetation, wildlife, wildlife habitat, cultural resources, wilderness suitability, or threatened and endangered species, BLM must close the areas to ORVs. Id (a). The area can only be reopened if BLM determines that the adverse effects have been eliminated and measures implemented to prevent recurrence. Id. E. NATIONAL WILD AND SCENIC RIVERS ACT (WSRA) 44. Congress enacted the WSRA in 1968 to preserve selected rivers in their free-flowing condition for the benefit and enjoyment of present and future generations. 16 U.S.C The WSRA requires BLM to consider as part of the RMP planning process whether there are rivers or river segments that are appropriate for inclusion in the National Wild and Scenic Rivers System. 16 U.S.C. 1276(d)(1). BLM must first determine which rivers or river segments are eligible for consideration. Id. 1273(b). Eligible rivers or river segments must be free flowing and possess at least one of the following outstandingly remarkable values: scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values. Id. 1271, 1273(b). Eligible rivers or segments are then given a tentative 16

17 Case 1:10-cv RMU Document 1 Filed 11/09/10 Page 17 of 43 classification of wild, scenic, or recreational based on the level of human disturbance associated with that segment. Id. 1273(b)(1)-(3). To determine eligibility, BLM must look solely at river values; no other concerns such as economics or resource conflicts are considered at this stage. BLM Manual (A). 46. After determining eligibility, BLM must then determine which eligible segments are suitable for inclusion in the National Wild and Scenic Rivers System. The suitability determination considers tradeoffs between river protection and corridor development, including environmental and economic concerns. 16 U.S.C. 1275(a). Once BLM determines a segment is suitable, it must manage it to preserve the outstandingly remarkable values and to prevent impairment of any future suitability decision. BLM Manual (C). 47. After BLM makes its suitability determinations, the agency must coordinate with the State of Utah, local and tribal governments, and other federal agencies to recommend segments to Congress for inclusion in the National Wild and Scenic Rivers System. F. SECRETARIAL ORDER NO On January 19, 2001 Secretary of the Interior Bruce Babbitt issued Secretarial Order No Evaluating Climate Change Impacts in Management Planning. 49. Secretarial Order No ensures that climate change impacts are taken into account in connection with Departmental planning and decision making. Secretarial Order No It provides that [e]ach bureau and office of the Department will consider and analyze potential climate change impacts when... developing multi-year management plans, and/or when making major decisions regarding the potential utilization of resources under the Department s purview. Departmental activities covered by this Order include, but are not 17

18 Case 1:10-cv RMU Document 1 Filed 11/09/10 Page 18 of 43 limited to... management plans and activities developed for public lands [and] planning and management activities associated with oil, gas, and mineral development on public lands. Id Secretarial Order No was effective on the date it was issued January 19, 2001 and remains in effect today. 51. As of October 31, 2008 the date BLM approved the Richfield and Kanab RMPs and November 17, 2008 the date BLM approved the Monticello RMP the Order had not been amended, suspended, revoked, or converted to the Departmental Manual. V. FACTS GIVING RISE TO PLAINTIFFS CAUSES OF ACTION 53. As part of its land use planning and revision process, BLM determined that it was operating under outdated land use plans and needed new RMPs throughout the state of Utah. BLM started developing some of these plans as early as 2001, and this work continued through After spending years on the plans, BLM finalized six RMPs and travel plans covering more than ten and a half million acres of public lands within a few weeks in the fall of These included the Monticello, Kanab, and Richfield RMPs, which cover approximately four-and-one-half million surface acres and include some of Utah s most outstanding and well-known public lands. One or more of the Plaintiffs in this matter filed a protest of each of these plans. With minor exceptions, the grounds for these protests were denied by the BLM. A. MONTICELLO RMP 55. In June 2003, BLM s Monticello field office issued a notice of intent in the Federal Register to prepare a new RMP for the 1.8 million surface acres and 2.5 million subsurface 18

19 Case 1:10-cv RMU Document 1 Filed 11/09/10 Page 19 of 43 acres of mineral estate the agency administers in the Monticello Planning Area in Southeastern Utah. Bounded generally by the Colorado state line on the east, the San Juan River on the south, and the Colorado River on the west, the Monticello Planning Area includes some of the most striking and remote desert wilderness areas in North America. Once home to the Ancestral Puebloan culture, thousands of ancient archaeological sites can be found from Hovenweep National Monument to Cedar Mesa and from White Canyon to Nokai Dome, particularly along desert streams such as those in Arch, Moqui, and Recapture canyons. The Monticello Planning Area includes approximately 1.2 million acres of wilderness-quality lands and borders Canyonlands National Park, Glen Canyon National Recreation Area, Hovenweep and Natural Bridges national monuments, Dark Canyon Wilderness Area, and the Navajo Nation. The plaintiffs in this matter participated in the scoping process for the draft EIS for the Proposed Resource Management Plan (PRMP), attending meetings and submitting detailed comments. When the draft EIS was released in November 2007 Plaintiffs submitted detailed comments, raising all of the factual and legal issues raised in this Complaint. 56. In September 2008, the BLM issued a Proposed Resource Management Plan and Final Environmental Impact Statement (PRMP/FEIS). Plaintiffs filed protests administratively appealing the PRMP/FEIS on or about October 6, In November 2008, the BLM issued a Record of Decision (ROD) which formally adopted the PRMP without substantive changes. 57. Among the key issues required to be considered in the Monticello PRMP/FEIS were protection of air quality, scenic values, designation of Wild and Scenic River segments, designation of ACECs, protection of areas with wilderness character, protection of historic 19

20 Case 1:10-cv RMU Document 1 Filed 11/09/10 Page 20 of 43 and cultural resources, evaluation of climate change impacts, and designation of areas and trails for ORV use. With respect to each of these issues, the PRMP/FEIS and the Record of Decision that followed and relied upon it have serious flaws. 58. The Monticello PRMP/FEIS does not include air quality modeling to assess ozone pollution and other criteria pollutants regulated under the Clean Air Act. BLM did not model air emissions from expected oil and gas development or vehicles traveling on routes designated in the travel plan. 59. EPA submitted written comments to BLM on the draft and final EIS for Monticello that critiqued the lack of adequate analysis for impacts to air quality and visibility, including impacts to nearby national parks, and that critiqued impacts to visual resources from the BLM s management decisions. Specifically, EPA expressed its concern that BLM s air quality analysis was insufficient to allow for project approvals while still ensuring compliance with federal and state air quality standards. The EPA asked BLM to disclose likely concentrations of criteria pollutants regulated under the national ambient air quality standards and those pollutants that affect visibility. The EPA also sought analysis of the impacts of the PRMP on air quality and visibility in the surrounding area. BLM ignored these concerns. 60. The Monticello PRMP/FEIS did not analyze the impacts of the plan with respect to climate change and the impacts of climate change on activities authorized under the plan. 61. The Monticello PRMP/FEIS includes a travel plan that designates almost 3,000 miles of dirt roads and trails for ORV use. In addition, the plan allows vehicles to travel up to 150 feet off most routes for dispersed camping or to collect wood. It also permits unlimited travel off of designated routes in chained areas to collect wood. This allowance effectively 20

21 Case 1:10-cv RMU Document 1 Filed 11/09/10 Page 21 of 43 turns dirt trails into open travel corridors that are as wide as the length of a football field, and even wider in chained areas. 62. The Monticello ROD implemented the travel plan and authorized vehicles to begin using these routes immediately. BLM made no findings in the Monticello PRMP/FEIS that the travel plan route designations would, as required by BLM regulations, minimize impacts to public lands resources such as soils, vegetation, wildlife, water, or other resources, including wilderness character. In fact, the document includes no specific discussion of any impacts that any of the designated routes will have to any public lands resource and does not even acknowledge the potential for travel in 300-foot corridors (150 feet on either side) along these routes to affect soils, vegetation, and other resources there. 63. BLM also failed to correctly identify existing routes as a baseline for analysis of the plan s designated motor vehicle routes. Without such a baseline, the agency lacked any accurate reference point for comparing the impacts of different alternatives for travel management. 64. BLM also failed to consider a travel plan alternative in the Monticello PRMP/FEIS that would fully protect wilderness resources and riparian areas. 65. Although BLM designated thousands of miles of motor vehicle routes in the Monticello Planning Area, the agency did not determine whether vehicle use would impact, damage, or destroy cultural resources and historic properties located on, under, or near these trails. 66. Plaintiffs also challenge BLM s reliance on the Utah Wilderness Settlement in the Monticello PRMP/FEIS and ROD. The Monticello PRMP/FEIS identified numerous areas which possessed wilderness character but were not designated as formal WSAs. BLM failed 21

22 Case 1:10-cv RMU Document 1 Filed 11/09/10 Page 22 of 43 to consider an alternative that would manage wilderness-quality lands under the IMP s nonimpairment standard or in a manner comparable to management under the IMP. 67. In the Monticello planning process BLM initially determined that thirteen streams in the Planning Area contained river segments potentially eligible for designation in the National Wild and Scenic Rivers System. Using improperly truncated criteria, BLM found that only twelve river segments in 6 rivers, comprising 115 total river miles (92 miles of which are BLM administered), in the Monticello Planning Area are eligible for designation in the National Wild and Scenic Rivers System, including several sections of the San Juan and Colorado rivers. 68. BLM then further scaled back the list of rivers that it might protect by determining that only four river segments comprising only 35 miles (out of 92 BLM-administered river miles that were eligible) were suitable for designation. BLM determined many segments were not suitable on the basis that they were located in areas with other administrative protections. 69. BLM also failed to give priority to designation of ACECs in the Monticello PRMP/FEIS. BLM determined that 521,141 acres within twelve separate areas met the relevance and importance criteria for designation as ACECs. Of these 521,141 acres, BLM designated seven ACECs covering just 73,492 acres. This decision not only excluded most of the areas identified as meeting the relevance and importance criteria but also abandoned long-standing existing protections imposed under BLM s prior land management plan for the Monticello Planning Area. The earlier plan had protected ten ACECs totaling 488,616 acres. The new RMP reduced the acreage protected as ACECs by almost 85%. BLM based its decision not to designate additional ACECs, and to remove protections for existing ACECs, 22

23 Case 1:10-cv RMU Document 1 Filed 11/09/10 Page 23 of 43 largely on the incorrect basis that the relevant and important values in potential ACECs would be protected through other means, including administrative designations. B. KANAB RMP 70. In April 2004, BLM s Kanab field office issued a notice of intent in the Federal Register to prepare a new RMP for the 554,000 surface acres the agency administers in the Kanab Planning Area, located in south central Utah. The Kanab Planning Area, situated between Zion National Park and the Grand Staircase-Escalante National Monument, encompasses 176,000 acres of wilderness-quality lands, including the dramatic Vermilion Cliffs, the deep chasm of the East Fork of the Virgin River, and the unique Coral Pink Sand Dunes of Moquith Mountain. The Kanab Planning Area includes several perennial streams such as Kanab Creek, which ultimately flows into the Grand Canyon, and the East Fork of the Virgin River, which winds through dark narrows hundreds of feet deep before reaching Zion National Park. It also includes literally thousands of archaeological sites from several Native American cultures and time periods spanning a period of several thousand years. 71. The Plaintiffs in this matter participated in the scoping process for the draft EIS, attending meetings and submitting detailed comments. After the draft EIS was released in October 2007, Plaintiffs submitted detailed comments, raising all of the factual and legal issues raised in this complaint. 72. In July 2008, the BLM issued a PRMP/FEIS for the Kanab Planning Area. Plaintiffs filed administrative protests of the PRMP/FEIS on or about August 18, In October 2008, the BLM issued a Record of Decision (ROD) which formally adopted the PRMP for the Kanab Planning Area without substantive changes. 23

24 Case 1:10-cv RMU Document 1 Filed 11/09/10 Page 24 of Among the key issues required to be considered in the Kanab PRMP/FEIS were protection of air quality, scenic values, designation of Wild and Scenic River segments, designation of ACECs, protection of areas with wilderness character, protection of historic and cultural resources, evaluation of climate change impacts, and designation of areas and trails for ORV use. With respect to each of these issues, the PRMP/FEIS and the Record of Decision that followed and relied upon it have serious flaws. 74. The Kanab PRMP/FEIS does not include air quality modeling for ozone and other criteria pollutants regulated under the Clean Air Act. BLM did not perform any modeling of emissions from activities under the proposed plan, instead making only vague general statements that provided little or no useful information for agency decision makers or the public. Emissions modeling would have allowed the BLM to actually estimate the concentrations of pollution which is how federal and state air quality standards measure pollution generated by activities envisioned in the RMP. 75. Plaintiffs warned BLM in comments that the agency had not prepared an analysis that would allow it to understand specific impacts to air quality. Plaintiffs further pointed out to the agency that it had made no effort to accurately assess or take into account the air pollution from ORV and motorized vehicle use permitted in the travel plan. BLM rejected these concerns, in essence stating that it did not have sufficient data to forecast impacts on air quality but nonetheless expected that no impacts would occur. 76. The Kanab PRMP/FEIS acknowledged the fact of climate change, and the fact that activities within the Kanab planning area may contribute to climate change. BLM failed, however, to actually analyze the impacts of plan activities on climate change and the impacts of climate change on activities authorized under the plan. 24

25 Case 1:10-cv RMU Document 1 Filed 11/09/10 Page 25 of The Kanab PRMP/FEIS designates a 1,000-acre area open to cross-country ORV use in the Moquith Mountain WSA and includes a travel plan that designates 1,400 miles of dirt roads and trails for ORV use. The Kanab PRMP/FEIS permits vehicles to be driven and parked anywhere up to 150 feet on either side of these routes. The Kanab ROD implemented this travel plan and authorized vehicles to begin using these routes and the open area immediately. BLM made no findings in the Kanab PRMP/FEIS that the ORV open area, and the travel plan route designations, would minimize impacts to public lands resources such as soils, vegetation, wildlife, water, or other resources including wilderness character. In fact, the BLM s decision documents include no specific discussion of any impacts that the designated routes will have to any public lands resource and no acknowledgment that the authorized motorized use in 300-foot-wide corridors will have any impacts at all. 78. BLM failed to correctly identify existing routes as a baseline for evaluating designated motor vehicle routes. Without such a baseline, the agency lacked any accurate reference point for comparing the impacts of different alternatives. 79. BLM also failed to consider a travel plan alternative in the Kanab PRMP/FEIS that would fully protect wilderness resources and riparian areas, or even an alternative that would designate a reasonable mileage of ORV routes. 80. Although BLM designated well over a thousand miles of ORV routes in the Kanab Planning Area, and an open ORV area in the Moquith Mountain WSA, the agency did not determine whether vehicle use would affect, damage, or destroy cultural resources and historic properties located on, under, or near these trails or open areas. 81. The Kanab PRMP/FEIS identified numerous areas which possess wilderness character, but were not designated as formal WSAs. BLM failed to consider an alternative 25

26 Case 1:10-cv RMU Document 1 Filed 11/09/10 Page 26 of 43 that would designate WSAs and/or manage these wilderness-quality lands under the IMP s non-impairment standard. 82. Following the Utah Wilderness Settlement, BLM also failed to consider protection for areas containing wilderness character in a manner comparable to management under the IMP. 83. In the Kanab PRMP/FEIS, BLM initially determined that fifteen segments in the planning area were potentially eligible for designation in the National Wild and Scenic Rivers System. BLM dropped many of the segments from further consideration because of potential future uses or opposition from local governments and state agencies, reasons not sanctioned by the statute. Using an illegally truncated analysis, BLM found that only six river segments, comprising thirty river miles, in the Kanab Planning Area were suitable for designation under the WSRA. BLM determined many segments were not suitable on the basis that they were located in areas with other administrative protections. 84. BLM also failed to give priority to designation of ACECs in the Kanab PRMP/FEIS. BLM determined that 60,600 acres within five separate areas met the relevance and importance criteria for designation as ACECs. Of these 60,000 plus acres, BLM designated only one ACEC, covering just 3,800 acres. BLM based its decision not to designate additional ACECs largely on the incorrect basis that the relevant and important values in potential ACECs would be protected through other means, including administrative designations. C. RICHFIELD RMP 85. The Richfield PRMP/FEIS set the BLM s management direction for the 2.1 million acres of surface areas the agency administers in the Richfield Planning Area, spread across 26

27 Case 1:10-cv RMU Document 1 Filed 11/09/10 Page 27 of 43 southern Utah. In addition, the BLM manages another roughly 1.6 million acres of subsurface minerals where the surface is managed by the Forest Service, the state or other entities. The BLM-managed portions of the Richfield Planning Area include nearly 1.2 million acres of wilderness-quality lands, such as the famed Dirty Devil River and its numerous serpentine side canyons; the Henry Mountains, the last mountain range to be mapped in the lower 48 states; and thousands of archaeological sites from the Ancestral Puebloan and other cultures. Most of the BLM-managed land in the Richfield Planning Area is sandwiched between Capitol Reef National Park and the Glen Canyon National Recreation Area. 86. The plaintiffs in this matter participated in the scoping process for the draft EIS, attending meetings and submitting detailed comments from November 2001 to April After the draft EIS was released in October 2007, Plaintiffs submitted detailed comments, raising all of the factual and legal issues raised in this complaint. 87. In August 2008, the BLM issued a PRMP/FEIS for the Richfield Planning Area. Plaintiffs filed administrative protests of the PRMP/FEIS on or about September 8, In October 2008, the BLM issued a Record of Decision (ROD) which formally adopted the PRMP/FEIS for the Richfield Planning Area without substantive changes. 88. Among the key issues required to be considered in the Richfield PRMP/FEIS were protection of air quality, scenic values, designation of Wild and Scenic River segments, designation of ACECs, protection of areas with wilderness character, protection of historic and cultural resources, evaluation of climate change impacts, and designation of areas and trails for ORV use. With respect to each of these issues, the PRMP/FEIS and the ROD that followed and relied upon it have serious flaws. 27

28 Case 1:10-cv RMU Document 1 Filed 11/09/10 Page 28 of The Richfield PRMP/FEIS does not include air quality modeling for ozone and other criteria pollutants regulated under the Clean Air Act. BLM also did not perform any modeling of emissions from activities under the proposed plan, instead making only vague general statements that provided little or no useful information for agency decision makers or the public. Emissions modeling would have allowed the BLM to actually estimate the concentrations of pollution which is how federal and state air quality standards measure pollution generated by activities envisioned in the RMP. 90. The U.S. Environmental Protection Agency, as well as Plaintiffs, warned in comments that BLM had failed to conduct an analysis that would allow it to understand specific impacts to air quality. Plaintiffs further pointed out to the agency that it had made no effort to accurately assess or take into account air pollutant impacts from ORV use. BLM rejected these concerns, in essence stating that it did not have sufficient data to forecast impacts on air quality, but nonetheless predicting that no impacts would occur. This prediction came in spite of the fact that the RMP disclosed that air quality in the region already likely violated federal and state air quality standards. 91. The Richfield PRMP/FEIS acknowledged the fact of climate change, and the fact that activities within the Richfield planning area may contribute to climate change. BLM failed, however, to analyze the impacts of plan activities on climate change and the impacts of climate change on activities authorized under the plan. 92. The Richfield PRMP/FEIS designates 9,980 acres open to cross-country ORV use, and includes a travel plan that leaves 90% of the BLM managed surface area, or about 1.9 million acres, available for motorized use. The PRMP/FEIS designates 4,277 miles of dirt roads and trails for ORV use. It permits 300 foot-wide travel corridors along the trails for 28