August 27, 2018

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Briefing Paper on BLM's July 24, 2018 Instruction Memorandum Related to Compensatory Mitigation (IM 2018-093)

By Samuel Lofland, Attorney at Ryley Carlock & Applewhite

A little over a month ago, on July 24, 2018, the Deputy Director for Policy and Programs of the United States Bureau of Land Management issued Instruction Memorandum No. 2018-093 (“IM 2018-093”) to all Assistant Director and All Field Office Officials.  The IM’s subject is “Compensatory Mitigation,” and provides:

Except where the law specifically requires, the BLM must not require compensatory mitigation from public land users. While the BLM, under limited circumstances, will consider voluntary proposals for compensatory mitigation, the BLM will not accept any monetary payment to mitigate the impacts of a proposed action. In all instances, the BLM must refrain from authorizing any activity that causes unnecessary or undue degradation (UUD), pursuant to FLPMA Section 302(b).1

There are conflicting views about the effect of IM 2018-093, largely falling along political party lines.  The purpose of this briefing paper is to provide an apolitical summary and analysis of IM 2018-093.

I. What is a BLM Instruction Memorandum?
Instruction Memorandum (“IM” or “IMs”) “are directives that supplement the BLM manual sections and handbooks” and “contain new policy or procedures that must reach BLM employees quickly, interpret existing policies or provide one-time instructions.”2   There are two types, Permanent IMs, which “provide lasting guidance that is short in scope [, and] . . . remain in effect until superseded or deleted,” and Temporary IMs, which “offer operational, incident-specific, project-related or one-time policy or guidance for evolving activities[, and] . . . expire at the end of the third fiscal year following issuance.”3  IM 2018-093 is, by its terms, a Permanent IM, as it provides lasting guidance without a term or expiration date.4

It is important to understand that IMs are non-binding, as they are neither promulgated through an agency rulemaking process nor created through an adjudication as a binding precedent.5   Consequently, IMs do not have the effect of law, and Courts are not required to follow them in legal challenges.6  Consequently, a party cannot bring a claim for relief against the BLM solely on the basis that the BLM fails to follow an IM, as there are “non-binding internal policy memorandum.”7   This is a critical distinction, as IM 2018-093 makes clear that “[t]his IM does not affect compensatory mitigation that may be required by Federal laws other than FLPMA.”8   Consequently, compensatory mitigation required by other Federal laws or state laws are not impacted by IM 2018-093; likewise un-impacted are the general requirements of FLPMA and NEPA regarding the mitigation of impacts.

II. Summary of IM 2018-093
IM 2018-093 prohibits the BLM from imposing “compensatory mitigation” into its “official actions, authorizations to use the public lands, and any associated environmental review documents, including, but not limited to, permits, rights-of-ways, environmental impact statements, environmental assessments, and resource management plans.”9  It likewise prohibits BLM from explicitly or implicitly conditioning approval on “voluntary” compensatory mitigation.10

IM 2018-093 defines “compensatory mitigation” as “[a] project proponent’s activities, monetary payments, or in-kind contributions to conduct offsite actions that are intended to offset adverse impacts of a proposed action onsite” (emphasis added).11   This is an important definition, as it makes clear that IM 2018-093 does not relate to, or in any way impact, project proponent’s activities, monetary payments, or in-kind contributions to conduct onsite actions that are intended to offset adverse impacts of a proposed action onsite.

Recall, NEPA requires a “hard look” at the impacts of a proposed action, which includes the “a reasonably complete discussion of possible mitigation measures to minimize environmental consequences.”12   NEPA does not require that mitigation be legally enforceable, funded, or even in final form.13  The CEQ Regulations define mitigation as including:

(a) Avoiding the impact altogether by not taking a certain action or parts of an action.
(b) Minimizing impacts by limiting the degree or magnitude of the action and its implementation.
(c) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment.
(d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action.
(e) Compensating for the impact by replacing or providing substitute resources or environments.14

The CEQ regulations provide that the analysis of alternatives and environmental consequences shall “[i]nclude appropriate mitigation measures not already included in the proposed action or alternatives.”15  The CEQ regulations are consistent with the BLM regulations, which provide:

An applicant's proposal presented to the bureau for analysis must include any ameliorative design elements (including stipulations, conditions, or best management practices), required to make the proposal conform to applicable legal requirements, as well as any voluntary ameliorative design element(s). The effects of any mitigation measures other than the ameliorative design elements included in the applicant's proposal must also be analyzed. The analysis of these mitigation measures can be structured as a matter of consideration of alternatives to approving the applicant's proposal or as separate mitigation measures to be imposed on any alternative selected for implementation.16

IM 2018-093 does not change these requirements of NEPA with respect to onsite compensatory mitigation; however, it does provide that unless a compensatory mitigation measure, as defined by the IM, is voluntary, “BLM should not carry them forward for detailed analysis in a NEPA document.”  Voluntary compensatory mitigation is defined in the IM as “when a project proponent’s activities, payments, or in-kind contributions to conduct offsite actions to minimize the impacts of a proposed action are free of coercion or duress, including the agency’s withholding of authorization for otherwise lawful activity, or the suggestion that a favorable outcome is contingent upon adopting a compensatory mitigation program.” 

Finally, the IM requires the BLM do engage in the following self-reporting requirements:

  • State, District, and Field Offices must identify any existing mandatory compensatory mitigation programs, including programmatic agreements, resource management plans, and land use plans, and report them to the Deputy Secretary for appropriate action.
  • The appropriate State Director must review all applications for which the applicants are proposing to conduct offsite compensatory mitigation to make certain that the proposed offsite compensatory mitigation is voluntary.
  • The BLM Director must prepare and submit to the Deputy Secretary an annual report summarizing all projects incorporating offsite compensatory mitigation. This report must include the location of each project, the estimated cost to the proponent of the proposed compensatory mitigation, and a listing of any Federal and non-federal partners.

The IM provides that “[i]n no circumstance may BLM agree to accept a monetary contribution for the implementation of compensatory mitigation.”  This means that even if there is a voluntary compensatory mitigation, the BLM cannot accept or administer the funds.  Private parties already utilize compensatory mitigation, like funding off-site improvements, to mitigate impacts below a level of significance (thereby obviating the need for an EIS) or to garner public support.  Under the IM, utilization of compensatory mitigation for such purposes will necessitate that the private party identify a state or third-party entity to receive and administer funds for the implementation of compensatory mitigation.  All of the forgoing would need to be disclosed and analyzed in the appropriate NEPA documentation.  While not overly burdensome, it does create a new administrative hurdle to private parties that want to voluntarily include compensatory mitigation, for whatever purpose.

III. Reconciling the Use of Mitigated FONSIs with the IM
One issue with the IM is how it will be implemented with respect to a Mitigated FONSI.  In 2011, CEQ issued guidance17 reversing its past position that an Environmental Impact Statement (“EIS”) remains necessary even if mitigation measures are developed during the NEPA process that will reduce the reasonably foreseeable environmental impacts of a major federal action to a level that is not significant.18  CEQ’s guidance is that “use of mitigation may allow the agency to comply with NEPA’s procedural requirements by issuing an EA and a Finding of No Significant Impact (FONSI), or ‘mitigated FONSI,’ based on the agency’s commitment to ensure the mitigation that supports the FONSI is performed, thereby avoiding the need to prepare an EIS.”19   Essentially, a proponent of a private project can forgo a costly and time consuming EIS, and instead prepare an EA, if there is enforceable mitigation in place such that the residual effects are not “significant.”  The Mitigated FONSI is the final agency decision, and effectively means that with the required and enforceable mitigation in place, there is no significant impact resulting from the action as approved.  Therefore, critical to a Mitigated FONSI is the enforcement aspect of the mitigation:

  • The mitigation measures must be enforceable, i.e. subject to sufficient legal authority to ensure they will be performed;20
  • Likewise, an agency should not issue a mitigated FONSI if it is not reasonable to believe that the necessary funding will be available to ensure adequate monitoring and enforcement;21
  • An agency should place appropriate restrictions on authorizations (e.g. grants or permits) given by the agency that will enable the agency to suspend or cancel the authorizations in the event of noncompliance with the mitigation plan;22
  • The mitigation requirements should be clearly described in the mitigated FONSI, including measurable performance standards or expected results;23
  • Secondary mitigation measures can be identified for implementation in the event that the initial measures are unsuccessful.24

The mitigation used to effectuate a Mitigated FONSI, as contemplated by the 2011 guidance, could include compensatory mitigation.  Consequently, under existing CEQ guidance and case law, an EA can be prepared in lieu of an EIS, and a FONSI issued, if the lead agency analyzes, requires, and conditions such approval on mitigation measures, potentially including compensatory mitigation, which reduce the impacts such that they are no longer “significant.”  The IM effectively prohibits BLM from utilizing a Mitigated FONSI if compensatory mitigation is involved, unless the proponent “volunteers” to have the compensatory mitigation included.  However, even where a proponent “volunteers” to have compensatory mitigation imposed, a Mitigated FONSI is still difficult to reconcile with the IM, as BLM would have to condition the Mitigated FONSI on the incorporation and enforceability of said compensatory mitigation.
 
One effective means to resolve the friction of Mitigated FONSIs with the IM is through careful development of the “proposed action” to include compensatory mitigation as a “design feature.”  A “design feature” is a means to mitigate an impact included in a proposed action.25  The design features of a project, to some extent, obviate the need to analyze mitigation because such design features reduce the impacts.  However, if there are still adverse impacts even with design features utilized to reduce the same, then the BLM must analyze additional potential mitigation measures.26  Such an approach would be consistent with the IM, which states:

Where a project proponent has voluntarily proffered compensatory mitigation in an application, including in conjunction with a State requirement or as the result of other Federal law, BLM may incorporate it into and consider it as part of the project analysis. When BLM is considering compensatory mitigation as a component of the project proponent’s submission, BLM’s NEPA analysis should evaluate the need for compensatory mitigation by 1) considering the effectiveness of compensatory mitigation in reducing, resolving, or eliminating impacts of the proposed project(s), and 2) comparatively analyzing the proposal with and without the offsite compensatory mitigation.

IV. When Can Compensatory Mitigation Still Be Imposed?
The IM is clear that compensatory mitigation can still be imposed if a substantive requirement of state or federal law.  The IM is clarifying that FLPMA does not provide a requirement for offsite compensatory mitigation, and consequently anything other than voluntary offsite compensatory mitigation cannot be analyzed in the NEPA process.  The Clean Water Act (“CWA”) provides an example of a federal law where compensatory mitigation is a substantive requirement.  Under the CWA, for unavoidable impacts to “Waters of the United States,” compensatory mitigation is required to replace the loss of wetland or aquatic resource functions.27  There are other examples, like the Endangered Species Act, but environmental regulations are presently in some degree of flux with respect to the current administration.28  The state of other federal regulations is beyond the scope of this briefing paper.  Consequently, the IM relates only to the interpretation of FLPMA, and has no bearing on state or other federal laws.
  
V. Clarification of UUD in the IM
As framed by the IM:

  • The BLM has an obligation to ensure that actions do not result in UUD. 43 U.S.C. §1732(b).
  • This obligation provides authority to require project proponents to avoid, minimize, rectify, and/or reduce anticipated harms, as necessary and appropriate.
  • Compensatory mitigation cannot prevent what would otherwise constitute UUD.  If a proposed use of the public lands would result in UUD, then the BLM cannot authorize that use, even if compensatory mitigation is proposed.
  • Preventing unnecessary or undue degradation does not mean preventing all adverse impacts upon the land.  The negative inference of the words “unnecessary” and “undue” is that a certain level of impairment may be necessary and due under a multiple use mandate.29 

The IM is clear that “the BLM must refrain from authorizing any activity that causes unnecessary or undue degradation (UUD), pursuant to FLPMA Section 302(b).” It further clarifies that if there would be UUD, compensatory mitigation cannot obviate the same and the proposed action must be denied.  Consequently, it is important to understand what constitutes UUD. 

BLM has broad discretion in determining how to address environmental degradation and in determining whether a particular use will cause “undue” degradation.30   “Undue degradation” can be found where a proposed action is inconsistent with the land-use management objectives identified in a Resource Management Plan (“RMP”); in other words, if a proposed action conflicts with a preservation objective the BLM has identified in an RMP, then the BLM may determine that there would be “undue degradation.”31   The BLM’s regulations in effect until 2010, in the context of rights-of-way, defined UUD as:

surface disturbance greater than that which would normally result when the same or a similar activity is being accomplished by a prudent person in a usual, customary, and proficient manner that takes into consideration the effects of the activity on other resources and land uses, including those resources and uses outside the area of activity.32

While this regulation is no longer effective, it does provide reference for what constitutes UUD.  Effectively, undue degradation occurs where there will be impacts to public lands from a proposed action that are in excess to the normal type of impacts that would occur for such an action or activity, or where a proposed action is inconsistent with the preservation objectives identified in an applicable RMP.

BLM likewise has broad discretion in determining whether a particular action is “unnecessary.”  With respect to whether something is “unnecessary,” the BLM will consider if there are alternatives to a proposed action, and if there are viable alternatives that are comparable to the proposed action then the BLM is justified in denying the proposed action itself as “unnecessary.”33
  
UUD is a substantive obligation on BLM, whereas NEPA is a procedural requirement.34  The IM clarifies that during the procedural compliance part of NEPA an agency cannot analyze “compensatory mitigation” unless it is “voluntary,” as those terms are defined in the IM; for substantive compliance with UUD, the BLM cannot rely on “compensatory mitigation,” in any circumstance, to protect against UUD.  This clarification is inconsistent with at least one existing federal case: Biodiversity Conservation All. v. BLM, No. 09-CV-08-J, 2010 U.S. Dist. LEXIS 62431, at *1 (D. Wyo. June 10, 2010).

In Biodiversity Conservation All. v. BLM, No. 09-CV-08-J, 2010 U.S. Dist. LEXIS 62431, at *1 (D. Wyo. June 10, 2010), the Biodiversity Conservation Alliance ("BCA") challenged the FEIS and ROD for the Jonah Infill Drilling Project ("JIDP"), in part on the grounds that the JIDP would cause UUD sagebrush obligate songbirds.  The District Court upheld the decision of the IBLA, stating:

The JIDP will not result in UUD to the habitat of sagebrush obligate songbirds. BLM specifically analyzed mitigation measures as well as potential impacts to songbirds in the EIS. To ameliorate the acknowledged loss of songbird habitat, the ROD requires operators to conduct immediate reclamation measures once drilling ceases, and to perform onsite and offsite mitigation measures which are to be closely monitored and enforced by the JIO.35

The offsite mitigation measures were obligations in the ROD, and analyzed in the FIES, that “obligated operators to carry through with their commitment for funding for compensatory offsite mitigation to ameliorate project related impacts that may not be adequately mitigated onsite.”36  In this case, the JIDP FEIS and ROD could have been overturned on UUD grounds if the “compensatory mitigation” measures were not requirements.  Per the IM, it appears the position of the current administration that this project should not have been approved insofar as it relied upon compensatory mitigation to avoid UUD.  In essence, the IM has increased the burden on private parties with respect to UUD, because a private party can no longer utilize compensatory mitigation to avoid UUD.  Consequently, one can expect that during legal challenges there will be a renewed emphasis on UUD by environmental organizations. 

VI. Concluding Thoughts
The IM removes offsite compensatory mitigation from the BLM’s tool box as a means for reducing impacts to the environment; a private party may still voluntarily include offsite compensatory mitigation to address impacts, but cannot be required to do so by the BLM under FLPMA or NEPA. The IM does not alter the substantive compensatory mitigation requirements of state law or other federal laws.  The IM does not alter the requirement for the BLM to analyze impacts to the environment and related mitigation, which can include onsite compensatory mitigation, during the NEPA process. Ultimately, whether the change in BLM policy will lead to impacts to public lands will be driven more by changes to substantive federal laws requiring compensatory mitigation, like the ESA or CWA’s definition of “Waters of the United States.”

References:
1 https://www.blm.gov/policy/im-2018-093#_ftnref2 (last visited July 26, 2018)
2 https://www.blm.gov/policy/instruction-memorandum (last visited July 26, 2018).
3 Id.
4 https://www.blm.gov/policy/im-2018-093#_ftnref2 (last visited July 26, 2018).
5 see e.g. AMREP Corp. v. FTC, 768 F.2d 1171, 1178 (10th Cir. 1985) (“It is elementary administrative law that in order for it to have binding force there are only two methods that an agency may use in formulating policy. It may establish binding policy either through rule-making procedures or through adjudications that create binding precedents. General policy statements, such as the one at issue in this case, are the result of neither a formal rule-making proceeding nor an adjudication. They are merely public pronouncements of the policy that the agency plans to follow in rule-makings or adjudications. Such policy statements have no more binding effect than press releases. It is only when a new standard set forth in a policy statement is adopted in a formal rule-making or adjudication that it becomes a binding norm which the agency must follow in future cases.”) (internal citations and footnotes omitted); Pac. Gas & Elec. Co. v. Fed. Power Com., 164 U.S. App. D.C. 371, 506 F.2d 33, 38 (1974) (“The agency cannot apply or rely upon a general statement of policy as law because a general statement of policy only announces what the agency seeks to establish as policy. A policy statement announces the agency's tentative intentions for the future. When the agency applies the policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued.”); S. Utah Wilderness All. v. United States DOI, No. 2:15-cv-00194-JNP-EJF, 2016 U.S. Dist. LEXIS 42696, at *16 (D. Utah Mar. 30, 2016) (IMs are “internal policy document[s] that [are] not the product of rulemaking or adjudication[, and thus do] not have the force of law.”); But see Mont. Wilderness Ass'n v. Connell, 725 F.3d 988, 1009 (9th Cir. 2013) (“In light of these considerations, we hold that BLM failed to make a reasonable effort to identify historical and cultural resources. Consistent with BLM's own policy documents, BLM is required to conduct Class III inventories for roads, ways and airstrips that have not been surveyed previously or were surveyed decades ago.”).
6 Id.
7 Id. (“It is entirely possible that in failing to explain its decision not to consult or follow IM 2012-043, the BLM's decision to grant the rights of way was arbitrary and capricious in light of statutory requirements. The problem is that IM 2012-043 might inform BLM obligations under multiple statutes, each with different requirements. Not only is it outside the court's domain to identify the possible statutes at issue and incorporate them into SUWA's fourth claim for relief, but SUWA also affirmatively and persistently maintains that it is not alleging the violation of any other statute. As argued, SUWA's fourth claim for relief fails to state a claim. Review under the APA must be conducted in light of a relevant statute that forms the legal backdrop for determining whether an agency's decision was arbitrary, capricious, or contrary to law.”).
8 https://www.blm.gov/policy/im-2018-093#_ftnref2 (last visited July 26, 2018).
9 Id.
10 Id.
11 Id.
12 Laguna Greenbelt, Inc. v. U.S. Dept. of Transp., 42 F.3d 517, 528 (9th Cir. 1994) (citing Robertson, 490 U.S. at 352-53.)
13 NPCA v. U.S. Dept. of Transp., 222 F.3d 677, 681 n. 4 (9th Cir. 2000); Protect Our Cmtys. Found. v. Salazar, No. 12cv2211-GPC(PCL), 2013 U.S. Dist. LEXIS 159281, at *48 (S.D. Cal. Nov. 6, 2013) (the BLM’s issuance of a ROD based on an FEIS was upheld, notwithstanding the fact that there were multiple mitigation plans identified in the FEIS that were developed after the issuance of the ROD.); Protect Our Cmtys. Found. v. Salazar, No. 12cv2211-GPC(PCL), 2013 U.S. Dist. LEXIS 159281, at *49 (S.D. Cal. Nov. 6, 2013) (“But even if they were not formulated until after the ROD, there is no requirement that mitigation plans be finalized prior to execution of the ROD.”); see also, Protect Our Cmtys. Found. v. Jewell, No. 13CV575 JLS (JMA), 2014 U.S. Dist. LEXIS 50698, at *52-56 (S.D. Cal. Mar. 25, 2014) (“Finally, the EIS recognizes that ‘special-status bird species have the potential to collide with towers and transmission lines and have the potential to be electrocuted by the transmission towers associated with the Tule Wind Project, resulting in injury or mortality.’ (AR 614-15.) To address this risk, the EIS sets forth Mitigation Measure BIO-10b, which requires that ‘[a]n Avian Protection Plan . . . be developed jointly with the U.S. Fish and Wildlife Service [(‘FWS’)] and California Department of Fish and Game and . . . provide the framework necessary for implementing a program to reduce bird mortalities.’ (AR 614.) . . . In short, Plaintiffs' claim that proposed mitigation measures were entirely undeveloped is not supported by the record. The EIS outlined several mitigation measures in considerable detail. . . . The EIS's discussion of mitigation is more than adequate under NEPA.”)
14 40 CFR 1508.20 (emphasis added). 
15 40 CFR 1502.14(f); see also, 40 CFR 1502.16(h) (Environmental Consequences “shall include discussions of: . . . Means to mitigate adverse environmental impacts (if not fully covered under § 1502.14(f)).”)
16 43 CFR 46.130(b).
17 Memorandum for Heads of Federal Departments and Agencies re: “Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact,” dated January 14, 2011 (“Final Guidance”).
18 NEPA’s requirement that federal agencies must consider environmental consequences only applies in the case of “major Federal actions” that “significantly” impact the human environment. 42 U.S.C. § 4332(2)(C).  CEQ’s implementing regulations outline what constitutes a “Major Federal action,” 40 C.F.R. § 1508.18, and what impacts are “significant.”  40 C.F.R. § 1508.27.
19 Final Guidance at pp. 4-5 (citing 40 CFR § 1508.20) (emphasis added).
20 Id. at p. 7 and n. 18.
21 Id. at p. 7.
22 Id. at pp. 9 and 14-15.
23 Id. at pp. 7-8.
24 Id. at pp. 9-10.
25 Available online at BLM NEPA Handbook, Section 6.8.4 Mitigation and Residual Effects , available online at http://www.blm.gov/pgdata/etc/medialib/blm/wo/Information_Resources_Management/policy/blm_handbook.Par.24487.File.dat/h1790-1-2008-1.pdf (last visited August 23, 2018) (“If mitigation measures are incorporated into the proposed action or alternatives, they are called design features, not mitigation measures (see section 6.5.1.1, Design Features of the Proposed Action). You must describe the mitigation measures that you are adopting in your decision documentation.”).
26 see e.g. See e.g. 40 C.F.R. § 1502.14(f); 40 C.F.R. § 1502.16(h); 43 C.F.R. § 46.130(b).
27See e.g. https://www.epa.gov/sites/production/files/2015-08/documents/compensatory_mitigation_factsheet.pdf (last visited August 27, 2018).
28 See e.g. https://www.federalregister.gov/documents/2018/07/30/2018-16171/endangered-and-threatened-wildlife-and-plants-endangered-species-act-compensatory-mitigation-policy (last visited August 27, 2018); https://www.epa.gov/wotus-rule (last visited August 27, 2018).
29 See Theodore Roosevelt Conservation Partnership v. Salazar, 661 F.3d 66, 78 (D.C. Cir. 2011) (“FLPMA prohibits only unnecessary or undue degradation, not all degradation.”) (emphasis in the original); see also BLM, Instructional Memorandum No. 92-67 (Dec. 3, 1991) (“‘Unnecessary and undue degradation’ implies that there is also necessary and due degradation.  For example, if there is only one route of access possible for development of an existing oil and gas lease, and that route presents the likelihood of some degradation of public lands or resources, such degradation may be considered necessary for the management of the oil and gas resource.  . . . As another example, the RMP/EIS or site-specific environmental document may identify mitigation which would result in excessive expenditures of money or unusual technological requirements to achieve compliance.  Otherwise there would be some degree of degradation of public lands or resources.  If the mitigation would render the proposed operation uneconomic or technologically infeasible so that a prudent operator would not proceed, such degradation may also be considered necessary for the management of the oil and gas resource.”).
30 Gardner v. United States BLM, 638 F.3d 1217, 1222 (9th Cir. 2011) (“While this case was brought under § 1732(b), we conclude that the reasoning the Supreme Court used in SUWA in construing §§ 1732(a) and 1782(c) of the FLPMA applies with equal force to § 1732(b).HN10 Like §§ 1732(a) and 1782(c) of the FLPMA, § 1732(b) directs the BLM to achieve the broad objectives of preventing unnecessary or undue degradation of public lands. See SUWA, 542 U.S. at 66-67; 43 U.S.C. § 1732(b). Nevertheless, § 1732(b) "leaves [the] BLM a great deal of discretion in deciding how to achieve" these objectives, SUWA, 542 U.S. at 66, because it does not specify precisely how the BLM is to meet them, other than by permitting the BLM to manage public lands by regulation or otherwise. See 43 U.S.C. § 1732(b). Accordingly, we hold that the broad wording of § 1732(b) does not mandate that the BLM adopt restrictions that would result in completely excluding off-road vehicle use in Little Canyon Mountain.”); W. Watersheds Project v. Abbey, 719 F.3d 1035, 1044 (9th Cir. 2013).
31 See e.g. Michael and Edith Lederhause, 174 IBLA 188, 194 (Department of Interior, Interior Board of Land Appeals 2008) (“BLM appropriately denied the ROW because it is inconsistent with the purposes for which the public lands in the Blue Hills ACEC are managed and because granting the ROW would conflict with  FLPMA's directive to prevent unnecessary or undue degradation, 43 U.S.C. § 1732(b) (2000), and the ROW program's objective to prevent such degradation, 43 C.F.R. § 2801.2(b). See 43 C.F.R. § 2804.26(a)(1), (4).”)
32 https://www.gpo.gov/fdsys/pkg/CFR-1999-title43-vol1/pdf/CFR-1999-title43-vol1-sec11-21.pdf (last visited August 27, 2018).  See also regulations in effect before 2010, 43 C.F.R. 3600.0-4.
33 See e.g. Michael and Edith Lederhause, 174 IBLA 188, 194 (Department of Interior, Interior Board of Land Appeals 2008) (“BLM based its determination that granting the proposed ROW would cause unnecessary or undue degradation on its conclusions that the project was unnecessary, given the existence of alternatives to the proposed water diversion system, and that the project would create adverse impacts to the public lands while providing little or no commensurate public benefits.”)
34 Wyoming Outdoor Council, 176 IBLA 15, 46 (Department of Interior, Interior Board of Land Appeals 2008) (“In effect, BCA asserts that BLM has a procedural obligation under NEPA to properly consider whether the Project will result in unnecessary or undue degradation of the public lands, and thereby demonstrate compliance with section 302(b) of FLPMA. We disagree. BLM's obligation under section 102(2)(C) of NEPA is to fully consider the likely significant impacts of approving the Project.  It is not to address the question of whether BLM will, in approving the Project, transgress its FLPMA obligation to prevent unnecessary or undue degradation, by exceeding some pre-determined ‘threshold’ or otherwise. We agree with BP America's statement that BCA's ‘attempt to convert [section 302(b) of FLPMA] into a procedural requirement that BLM identify a specific threshold beyond which any impacts would be considered unnecessary or undue . . . finds no support in the statute, regulations, or case law.’ We conclude that BLM was not required to assess compliance with the FLPMA requirement to prevent unnecessary or undue degradation in an EIS prepared to consider the potential environmental impacts of oil and gas development. However, we recognize that BLM does have a substantive obligation, under FLPMA, to prevent unnecessary or undue degradation of the public lands, and is thus required to ensure that approved activities will not unnecessarily or unduly degrade public lands. BLM was cognizant of that obligation, and found that the Project was not undue degradation in an EIS prepared to consider the potential environmental impacts of oil and gas development. However, we recognize that BLM does have a substantive obligation, under FLPMA, to prevent unnecessary or undue degradation of the public lands, and is thus required to ensure that approved activities will not unnecessarily or unduly degrade public lands. BLM was cognizant of that obligation, and found that the Project was not likely to cause unnecessary or undue degradation, based on its environmental analysis in the EIS.”) (internal citations omitted) .
35 Biodiversity Conservation All. v. BLM, No. 09-CV-08-J, 2010 U.S. Dist. LEXIS 62431, at *34-35 (D. Wyo. June 10, 2010) (unpublished disposition) (emphasis added).
36 Id.

 

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