United States Department o f the

OFFICE OF HEARINGS AND APPEALS Interior Board of Land Appeals

801 N . Street, Suite 300 Arlington, Virginia 22203

703-235-3750 703-235-8349 (fax)

December 2014

2014-228 DOI-BLM-UTY020-2013-021

OWEN SEVERANCE Travel Management

Affirmed; Petition for Stay Denied as Moot

ORDER

Owen Severance appeals from and requests a stay of the Decision Record (DR) issued by the Monticello Field Office (Utah), Bureau of Land Management (BLM), on June 20, 2014. This DR designated routes in San Juan County, Utah, as open for motorized use under the Monticello Travel Management Plan BLM prepared a site-specific environmental assessment, DOI-BLM-UTY020-2013-021 (EA), and made a Finding of No Significant Impact pursuant to rules implementing section (C) of the National Environmental Policy Act of 1969 (NEPA), 42 § 4332(2)(C) (2012). For the reasons discussed below, we affirm the DR and therefore deny appellant's stay request as moot.

BLM issued its four-volume "Cultural Resources Overview for BLM Lands in South San Juan County, Utah," in June pursuant to section 106 of the National Historic Preservation Act (NHPA), 16 U.S.C. § 470f See Statement of

The TMP is a part of the 2008 Monticello Resource Management Plan (RMP), which provides management direction for land use allocations and allowable uses of public lands within the planning area, as required by section 202 of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. § 1712 (2012).

This overview was a Class I Inventory, which BLM defines as a "professionally prepared study that includes a compilation and analysis of all reasonably available cultural resource data and literature, and a management-focused, interpretive, narrative overview, and synthesis of the data." BLM Manual (Identifying and Evaluating Cultural Resources 8-73, Dec. 3, 2004)) § A Class I I Inventory is a statistically based, probabilistic survey, to characterize the likely

Background

(continued...)

LA 2014-228

Reasons (SOR) dated July 2014, Attachment B. The NHPA is designed to ensure that an agency identifies and considers significant cultural resources in its decision­making process. See So. Utah Wilderness Alliance (SUWA), 182 377, 393 (2012), and cases cited; United States v. Jones, 106 IBLA 230, 251, 95 314, 325 (1998); So. Utah Wilderness Alliance v. Norton, 277 F. Supp. 2d 1169, 1193 (D. Utah 2003). Rules Implementing the NHPA are promulgated by the Advisory Council for Historic Preservation (ACHP). See 16 U.S.C. § 470s (2012) ("[ACHP] is authorized to promulgate such rules and regulations as i t deems necessary to govern the implementation of section 106 of this Act."); 36 C.F.R. Part 800 (Protection of Historic Properties); 65 Fed. Reg. 77,698 (Dec. 12, 2000).

The final environmental impact statement for the 2008 Monticello RMP discussed impacts to cultural resources from development, recreation, and other on-the-ground activities in the planning area.3 See EIS at 4-36 to 4-62. It that since "no comprehensive overview of cultural resource sites cultural resource survey projects" had been conducted since 1981, the Monticello Field Office would prepare an updated Class I for future RMP revisions. Id. at 3-23. In the meantime, i t was to "conduct proactive cultural inventories" before approving a land use decision, which would give BLM a better sense of site-specific effects and identify measures to eliminate, reduce, or compensate for impacts to cultural sites (e.g., conduct Class III Inventories before approving an application for land development or use). RMP at 15; see id. at 24.

To ensure adequate consideration of cultural resources in this case, BLM designated a 30-meter wide corridor along each route proposed for designation as its

character, density, and of cultural resources in an area; a Class III

is an intensive field for determining what historic properties actually exist within an area, is "most useful i t is necessary to know precisely what historic properties exist in a given area or information sufficient for

and decisions is needed on historic properties." Id. § 8110.21C.

Cultural resources are there defined as "non-renewable remains of past activity. For BLM management purposes, these remains take the form of sites, artifacts, buildings, structures, ruins, features, and landscapes particular cultural importance." EIS at 3-16. The EIS is available at http://www.blm.gov/ dat/RMP.pdf (last Sept. 4, 2014).

2

IBLA 2014-228

area of potential effects (APE).4 Since recent Class III Inventories covered portions of that APE, the remainder was the subject of a new Class II I Inventory, Project U13BL0478, which intensively surveyed an additional acres. See Summary

of Cultural Resources Inspection, March 14, 2014, and July 2013. BLM's request, the Utah State Historic Officer (SHPO) concurred

this APE and finding of No Adverse Effect. See DR 6, 39-42 (Attachment D - Consultation Coordination Letters); BLM § 800.5(b) (a no adverse effect finding may be made "when the undertaking's effects do not meet the criteria of paragraph (a)(1) of this section"); at 4 ("The wi l l not adversely affect districts, sites, highways, structures, other objects or

for listing in the national register of historic places, nor it cause loss or destruction of significant scientific, or historic resources.").5

BLM thereafter explained its purpose and need for amending the TMP in the following terms:

The proposed action is based on ensuring public safety, protecting cultural and natural resources, reducing conflicts with other

C.F.R. 800.16(d): Area of potential effects means the geographical area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties, i f any such properties exist. The area of potential effects is influenced by the scale and nature of an undertaking and may be different for different kinds of effects caused by the undertaking.

The rule at 43 C.F.R. § 800.5(a)(1) states: An adverse effect is found when an undertaking may alter, directly or indirectly, any of the characteristics of a historic property that qualify the property for inclusion in the National Register in a manner that would diminish the integrity of the property's location, design, setting, materials, workmanship, feeling, or association. . . . Adverse effects may include foreseeable effects by the undertaking that occur later in time, be farther removed or be cumulative.

responded to comment expressing concern over "indirect" effects stating it believe any occur "because the trails do not pass any highly

visible sites except for two are already highly visited and at which on-the-ground conditions not change as result of this proposal: Juan BLM has previously assigned to public use category and a the of Lake Canyon." EA 42 D - Public Scoping Comments and Responses) ; see

43 and Coordination Letters).

3

IBLA 2014-228

uses and users, and enhancing opportunities for motorized The proposed new segments would extend popular existing designated routes.

The need for the Proposed Action is to improve opportunities for motorized recreation by:

1. Providing loops for motorized recreation to enhance trails,

2. Providing spur trails and stops at popular destinations, 3. Reducing safety conflicts between recreational users and highway traffic, 4. conflicts between recreational uses and private landowner concerns, 5. Minimizing conflicts different user groups, 6. Minimizing impacts to natural and cultural resources through careful route design.

EA at 1-2; see at 1. Based on that EA, BLM issued its and DR.

The Monticello Field Manager found these TMP amendments were in conformity wi th the Monticello RMP, as required by section 302(a) of FLPMA, 43 U.S.C. § 1732(a) (2012), unlikely to result in any significant impacts to the human environment under NEPA, and that BLM was not required to prepare an EIS based on the factors set forth in 40 C.F.R. § 1508.27. See DR at 2-3. He then approved amending the TMP to designate routes (i.e., 7.7 miles of existing road and 2.4 miles of newly extended road) and authorized constructing two new parking areas, trailheads, associated cattle guards, and horse gates. Id. at 1. Severance timely filed an appeal, SOR, and stay request; BLM opposed our granting a stay on July 30, 2014 (Stay Opp.), and responded to the SOR on October 3, 2014 (Answer).

Discussion

Severance claims the DR be to the 2008 Monticello RMP because " [ i t ] does comply the requirements in BLM 8100." SOR at 1. Specifically, he contends the 2008 Monticello RMP was not an up-to-date Class Inventory and failed properly to allocate public lands to appropriate use categories for the protection of resources. See SOR 2-6 (citing BLM Manual §§ 8110.41, 8130.21). counters these claims be dismissed because they are beyond the Board's "jurisdiction to consider." Answer at 7. Severance also claims BLM adequately to consider Resources as

4

IBLA 2014-228

issue" when preparing the EA and that its APE was inadequate to identify and protect "cultural sites near these route segments (within walking distance or mile)." SOR at 8 (citing EA at 3). BLM counters that Severance has not met his burden to show BLM violated the NHPA or that the "decision is premised on a clear error of law or fact, or that i t failed to consider a substantial environmental question of material significance to the proposed action." Answer 9, 10. We separately address appellant's to the RMP claimed violations of the and NEPA.

1. The Board lacks jurisdiction to challenges to RMP.

We consider Severance's RMP-based claims, which question whether the 2008 Monticello RMP wi th then applicable requirements. This Board has held: "Because an RMP guides and controls management actions and establishes management policy, its approval is subject only to protest to the Director of BLM, whose decision is final for the Department." Rainer Huck, 365, 396 (2006). BLM published a notice of availability for the Monticello RMP on September 5, 2008, 73 Fed. Reg. 51,840, but Severance chose not to file a protest of that RMP. See 43 C.F.R. § 1610.5-2 (Protest procedures); Lee Dereske, 162 IBLA 303, 310 (2004) ("The Board does not have the jurisdiction to adjudicate the propriety of [an] RMP"), and cases cited; Lawrence V. Smart Trust, 129 IBLA 351, 358 (1994). We therefore summarily dismiss appellant's RMP claims as untimely and because they are beyond our authority to adjudicate.6

2. BLM complied with its obligations under the NHPA.

Severance contends the NHPA was violated because the APE in this case was inadequate and resulted in BLM ignoring cultural sites more than 30 meters from any proposed route segment. See SOR at 6, 7 ("BLM should not be allowed to ignore the impacts to nearby cultural resources by limiting the APE to such a small area that obvious impacts to nearby cultural sites can be ignored"), 8 ("BLM must expand the APE to include all of the area that could be reasonably accessed from these proposed route designations").7 BLM counters that appellant's claims are on his

We also note no error is shown merely because BLM the EA to the Final EIS for the Monticello RMP. See 40 C.F.R. §§ 1502.10, 1506.4, 1508.28; 43 C.F.R. §§ 46.300(a)(2), 46.320.

Severance his violation of the NHPA on BLM Manual § which states: "When environmental assessment or environmental impact statement is being for a land use might affect resources, preparers must have access to sufficient inventory data, professional expertise, to allow them to give meaningful consideration to resources

(continued...)

5

IBLA 2014-228

opinions, not demonstrated facts, and that BLM properly relied on the opinion of its archeologist to designate this APE and find No Adverse Effect, particularly since his opinions were concurred in by the SHPO. See Answer at 7-10, ("While Appellant may disagree wi th the opinion of BLM's archeologist that potential impacts to cultural resources was not an issue that needed to be carried forward for further analysis in the EA, Appellant's opinion is not sufficient to show BLM violated NEPA.").

Section 106 the NHPA requires Federal agencies to take into account the effect of an undertaking on any property eligible for on the National Register of Places Register). Like NEPA, is "stop, look, listen provision" that requires agencies to consider the effects of their actions and programs on historic properties and sacred sites before implementation. See, e.g., Apache Survival Coal. United States, 21 F.3d 895, 906 (9th Cir. 1994), and cases cited. Pursuant to a February 2012 Programmatic Agreement (PA) by, between, and among BLM, ACHP, and the National Conference of State Historic Preservation Officers, the parties agreed that in states with a BLM-SHPO protocol agreement, BLM would "meet its responsibilities under the NHPA through this agreement, as provided for in 36 CFR 800.14(b), rather than by following the procedure set forth in 36 CFR 800.3 through 800.7." PA at 3 (Basis of Agreement).8

Under procedures promulgated by ACHP (in consultation wi th the SHPO), a Federal agency must "determine and document" an APE and "take the steps necessary to identify historic properties within the area of potential effects." 36 C.F.R. § 800.4(a), (b). In so acting, i t must "make a reasonable and good faith effort to carry out appropriate identification efforts," determine whether properties eligible for listing on the National Register may be affected by a proposed undertaking, and i f so, make "a finding of no adverse effect" under identified criteria. 36 C.F.R. § 800.4(b)(1); see id. §§ 800.4(c, d), 800.5(a, b). Thus, BLM may implement a proposed undertaking i f the SHPO agrees wi th (or does not timely object to) a finding that no historic properties are in the APE, no historic properties in

known or projected to occur in the potential area." See SOR 6.

The BLM Director and SHPO entered into a state (SPA) Mar. 7, 2001, which largely mirrors 36 C.F.R. § 800.4 (Identification of historic properties) § 800.5 (Assessment of adverse effects). 36 C.F.R. § 800.4 and § 800.5 with SPA 3-5 and Evaluation of Historic Properties SHPO Review Parameters) PA at 4-5 Resource Management Procedures for Consideration of the Effects the BLM's Undertakings on Historic Properties). Rather refer to the programmatic and/or state agreements, we refer to those rules for ease analysis.

6

IBLA 2014-228

the APE wi l l be affected by the undertaking, or such properties wi l l not be adversely affected. See 36 C.F.R. § § 800.4(d)(1)(I), 800.5(c)(1).

In this case, BLM determined the APE would be a 30-meter wide corridor along each road segment proposed for designation. BLM identified National Register eligible sites in that APE but found there would be No Adverse Effect on any of them; the Utah SHPO concurred in that APE determination and finding. See DR at 38-41. While BLM complied wi th its procedural obligations under the NHPA, Severance claims i t violated the NHPA by not identifying a larger APE to protect historic properties in a mile-wide corridor (or distance of) each proposed road segment. See SOR at 6-7. We are unpersuaded that BLM acted unreasonably or otherwise violated the NHPA.

All Federal agencies are required to make a reasonable and good faith effort to identify historic properties that may be adversely affected by a proposed undertaking. To carry out its responsibilities under the NHPA, a Federal agency must determine an APE, survey that APE for potential historic properties, identify and determine whether any are National Register eligible, assess whether the proposed undertaking wi l l adversely affect such historic properties, and, i f so, mitigate those effects. The first step in this process is to determine an appropriate APE, which was here determined to be a 30-meter wide corridor. Appellant asserts this APE should have been a mile wide offers no facts to support his view, only opinion and speculation.

Severance made a similar claim in Owen Severance, 141 IBLA 48, 50 (1997), wherein he demanded that a Class I I I Inventory be performed "within mile of each [designated camping site under the proposed project]" because "the 150- to 300-foot buffer surveyed around each of the campsites by BLM is insufficient to protect from destruction or disturbance whatever cultural artifacts might exist or be present." The Board disagreed, finding BLM surveyed "a reasonable buffer zone around each site where disturbances could occur" and ruled that "unsupported differences of opinion" are insufficient to show BLM violated the NHPA. Id. at 54. The Board also explained:

An preference for additional planning and a more exhaustive cultural inventory study does not establish the efforts taken to ensure compliance the part of are insufficient to fulfill the cultural resource objectives by the Plan, or that [its] actions fail to with statutory or regulatory cultural resource protection requirements.

7

IBLA 2014-228

Id. at 53 (citing SUWA, 182 IBLA at 391); see also Owen Severance, 145 IBLA 70, 74 (1998) ("As we have noted many times, mere differences of opinion provide an inadequate basis for disturbing [BLM] decisions.").

BLM conducted Class I I I Inventories within a 30-meter wide corridor along proposed routes and around parking areas, which was this undertaking's APE, and found would be no adverse on historic properties in APE. This APE determination finding of No Adverse Effect were concurred in the SHPO. Severance has shown objective proof that any unidentified resources mile of the designations would be by this undertaking. We are satisfied that BLM made "a and faith effort to carry out appropriate identification efforts," as required by 16 C.F.R. § 800.4(b), and therefore conclude that i t did violate its obligations under the NHPA. See So. Utah Wilderness Alliance v. Norton, 326 F. Supp. 2d 102, 110 (D.D.C. 2004).

3. Severance has not met his burden to demonstrate that BLM violated NEPA.

NEPA requires BLM to take a "hard look" at the potential environmental impacts of a proposed Federal action and alternatives thereto. See SUWA, 182 IBLA at 386, and cases cited. An appellant seeking to overcome a decision based on an EA must demonstrate, with objective proof, that "it was premised on a clear error of law or demonstrable error of fact or that the analysis failed to consider a substantial environmental question of material significance to the proposed action" or that BLM otherwise failed to abide by section of NEPA. W. Watersheds Project (WWP), 183 IBLA 297, 319 (2013); see WildEarth Guardians, 182 IBLA 100, 106 (2012); SUWA, 177 IBLA 29, 34 (2009). A simple disagreement wi th the outcome or a difference of opinion, even by experts, is not proof of a NEPA violation. W. Exploration Inc., 169 IBLA 388, 404 (2006), and cases cited. As explained in WWP, 183 IBLA at 317-18:

The expert opinion of BLM's technical experts is entitled to deference not be overturned except upon a showing that

arbitrarily capriciously or to law; or that, by a preponderance of the evidence, it as matter of because its methodology was improper; or, although its was proper, it relied on inappropriate or insufficient data, engaged erroneous calculations or analysis, or unjustified conclusions. ANR Company, Inc., 182 IBLA 248, 261 (2012), citing v. Natural Resources Council, 490 U.S. 360, 378 (1989); Powder River Basin Resource Council, 180 IBLA 32, 48 (2010); Wyoming Outdoor Council, 173 IBLA 226, 235 (2007) (citing Fred E. Payne, 159 IBLA 69, 77-78 (2003)). Conclusory allegations of error and/or a mere

8

IBLA 2014-228

difference of expert opinion wi l l not suffice to demonstrate that BLM erred, or otherwise justify reversing its determination. Id. Above all, the party "must show not just that the results . . [BLM's analysis and conclusions] could be in error, but that they are erroneous." Company, Inc., 182 IBLA 261 West Cow Permittees v. BLM, 142 IBLA 238 (1998). The fact that an appellant has differing likely environmental impacts or prefers that BLM take another course of action does not show that BLM violated the procedural requirements of NEPA. Wilderness Alliance, 182 IBLA 377, 386 (2012); Biodiversity Conservation Alliance, 174 IBLA 1, 13 (2008); Wyoming Audubon, 151 42, 50 (1999); Juan Citizens Alliance, 129 IBLA 1, 14 (1994).

Appellant claims BLM violated NEPA by failing to give detailed consideration to cultural resources in this EA. See SOR at 7, 8 ("The EA must be rewritten to include Cultural Resources as an issue."). He asserts that the "high density of cultural sites in the Monticello [Field Office] is such that almost any proposal wi l l affect cultural resources," but he has proffered no objective proof showing that any particular historic site w i l l be affected by this proposed project. By contrast, BLM's archeologist determined the APE, surveyed that APE, and found no historic properties would be adversely affected by this project, in which the SHPO concurred. While Severance obviously disagrees, he simply has not met his burden to show that BLM violated NEPA.

Therefore, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior, 43 C.F.R. § 4 .1, the decision approving amendments to the travel management plan under the 2008 Monticello RMP is affirmed and appellant's request for a stay is denied.

I concur:

9