Southern Utah Wilderness v. DOI

Court: Court of Appeals for the Tenth Circuit
Date filed: 2022-08-16
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Appellate Case: 21-4073            Document: 010110725154   Date Filed: 08/16/2022
                                                                                FILEDPage: 1
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                                             PUBLISH
                                                                         August 16, 2022
                           UNITED STATES COURT OF APPEALS
                                                                      Christopher M. Wolpert
                                                                          Clerk of Court
                                 FOR THE TENTH CIRCUIT
                             _________________________________

  SOUTHERN UTAH WILDERNESS
  ALLIANCE; THE WILDERNESS
  SOCIETY; NATIONAL PARKS
  CONSERVATION ASSOCIATION;
  SIERRA CLUB,

         Plaintiffs - Appellants,

  v.                                                             No. 21-4073

  UNITED STATES DEPARTMENT OF
  THE INTERIOR; UNITED STATES
  BUREAU OF LAND MANAGEMENT;
  AHMED MOHSEN, in his official
  capacity as Color Country District
  Manager,

         Defendants - Appellees,

  and

  STATE OF UTAH; GARFIELD
  COUNTY,

         Intervenor Defendants - Appellees.

  ------------------------------

  NATURAL RESOURCES AND
  ADMINISTRATIVE LAW
  PROFESSORS,

         Amicus Curiae.
                             _________________________________
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                     Appeal from the United States District Court
                               for the District of Utah
                          (D.C. No. 2:19-CV-00297-DBB)
                       _________________________________

 Michelle White of Southern Utah Wilderness Alliance (Stephen H.M. Bloch of Southern
 Utah Wilderness Alliance, and Trevor J. Lee of Manning Curtis Bradshaw & Bednar
 PLLC, with her on the brief), Salt Lake City, Utah for Plaintiffs-Appellants.

 James Maysonett, Attorney (Todd Kim, Assistant Attorney General, Environment &
 Natural Resources Division, United States Department of Justice, with him on the brief),
 Washington, D.C. for Defendants-Appellees.

 Kaitlin T. Davis, Assistant Attorney General (Sarah Goldberg, Assistant Solicitor
 General, and Sean D. Reyes, Utah Attorney General, on the brief), Salt Lake City, Utah
 for Defendants-Intervenors-Appellees.

 Hillary M. Hoffman of Vermont Law School, South Royalton, Vermont; Gregor
 MacGregor of University of Colorado Law School, Boulder, Colorado; and Eric Biber of
 Berkeley Law School, Berkeley, California, filed an amicus curiae brief for Plaintiffs-
 Appellants.
                       _________________________________

 Before HOLMES, PHILLIPS, and CARSON, Circuit Judges.
                   _________________________________

 PHILLIPS, Circuit Judge.
                      _________________________________

       The Burr Trail is a scenic 66-mile road across federal land located in Garfield

 County, Utah. In 2018, Garfield County sought to chip-seal a 7.5-mile portion of the

 Burr Trail known as the Stratton Segment.1 Before Garfield County could begin its

 chip-sealing project, it was legally required to consult with the Bureau of Land


       1
         Before the chip-sealing, the Stratton Segment was a gravel road. “Chip-
 sealing differs from asphalt or concrete paving in that it is a relatively low impact
 and low-cost surface treatment in which one or more layers of asphalt and fine
 aggregate are spread over a road, then rolled to make a smooth surface.” R. vol. 1 at
 186–87.
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 Management (“BLM”) about the project’s scope and impact and obtain BLM’s

 approval. After doing so, Garfield County completed the project.2

       Soon after Garfield County chip-sealed the Stratton Segment, SUWA3 sued

 BLM and the United States Department of the Interior (“DOI”). Under the

 Administrative Procedure Act (“APA”), SUWA alleged that BLM had acted

 arbitrarily and capriciously when approving the chip-sealing project.4 The district

 court disagreed and dismissed SUWA’s claims.

       On appeal, SUWA raises a single issue. It asserts that BLM acted arbitrarily

 and capriciously in determining that Garfield County holds an R.S. 2477 right-of-way

 over the Stratton Segment (and more broadly over the entire Burr Trail).5 In support,

 SUWA reasons: (1) that BLM purported to apply the terms of an expired BLM


       2
         Even before this project was completed, about 50 miles of the 66-mile trail
 had already been chip-sealed.
       3
        As do the parties, we refer to “SUWA” collectively to include the Southern
 Utah Wilderness Alliance, the Wilderness Society, the National Parks Conservation
 Association, and the Sierra Club.
       4
          Among the reasons SUWA objected to the chip-sealing project was that it
 would “increase noise and pollution” nearby. Appellant R. vol. 1 at 44. Yet as part of
 its prayer for relief in its federal complaint, SUWA requests that the district court
 order BLM and DOI to “remove the recently placed chip seal” from the Stratton
 Segment. Id. at 35; see also id. at 45 (requesting that the district court “direct[] BLM
 to tear up the chip seal”).
       5
          After considering the parties’ positions, BLM concluded that “Garfield
 County is the holder of an R.S. 2477 [right-of-way] for the Burr Trail.” Appellant R.
 vol. 1 at 203. Because this appeal concerns just the Stratton Segment, we decide only
 whether BLM rationally concluded that Garfield County holds an R.S. 2477 right-of-
 way over those 7.5 miles.

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 policy—Internal Memorandum (“IM”) 2008-175—in making this R.S. 2477

 determination, and (2) that BLM’s findings didn’t satisfy the IM’s terms. 6

       We hold that BLM didn’t act arbitrarily and capriciously in informally

 determining that Garfield County has an R.S. 2477 right-of-way over the Stratton

 Segment. After reviewing the record, we disagree with SUWA that BLM “purported

 to” rely on IM 2008-175 in its R.S. 2477 determination. Instead, BLM properly relied

 on its authority under our caselaw to informally determine, for BLM’s own purposes,

 that Garfield County holds its asserted R.S. 2477 right-of-way. Thus, BLM’s decision

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

 with the law. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                   BACKGROUND

 I.    Revised Statute 2477

       In 1866, “Congress passed an open-ended grant of ‘the right of way for the

 construction of highways over public lands, not reserved for public uses.’” S. Utah

 Wilderness All. v. Bureau of Land Mgmt. (“SUWA v. BLM”), 425 F.3d 735, 740 (10th

 Cir. 2005) (quoting 43 U.S.C. § 932, repealed by Federal Land Policy and




       6
         As we understand it, SUWA concedes that BLM could have rationally
 approved the project had it not (supposedly) bound itself to IM 2008-175. At oral
 argument, SUWA’s counsel stated that “[i]f it were the case that BLM had examined
 Hodel, and then examined which facts applied to the Stratton Segment, and
 concluded that those relevant facts under the current legal standard are sufficient to
 establish an R.S. 2477 right-of-way, that may be rational.” Oral Argument Tr. at
 7:09–7:31.
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 Management Act of 1976, 43 U.S.C. §§ 1701–1787). This statute is commonly

 referred to as “R.S. 2477.” Id.

       For 110 years, “R.S. 2477 was a standing offer of a free right of way over the

 public domain.” Id. at 741 (internal quotations and citation omitted). The

 establishment of these rights-of-way required “no administrative formalities: no

 entry, no application, no license, no patent, and no deed on the federal side; no

 formal act of public acceptance on the part of the states or localities in whom the

 right was vested.” Id. “The public need only accept it.” San Juan Cnty. v. United

 States, 754 F.3d 787, 791 (10th Cir. 2014).

       Then on October 21, 1976, Congress enacted the Federal Land Policy and

 Management Act (“FLPMA”). SUWA v. BLM, 425 F.3d at 741. FLPMA repealed

 R.S. 2477 and prohibited new R.S. 2477 rights-of-way after that date. Id. But

 FLPMA included a savings clause that preserved R.S. 2477 rights-of-way already in

 existence. Id.; see also 43 U.S.C. § 1769(a). Thus, after October 21, 1976, claimants

 may still claim a right-of-way under R.S. 2477 only by proving that the right-of-way

 had been established before then.

       But establishing these rights-of-way has proven difficult. Given the lack of

 administrative formalities needed to create R.S. 2477 rights-of-way, “there are few

 official records documenting the right-of-way or indicating that a highway was

 constructed on federal land under” R.S. 2477. Id. (citation omitted).




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 II.   SUWA v. BLM

       In 2005, in SUWA v. BLM, we announced guiding principles relevant to this

 appeal. First, we observed that BLM lacked the “authority to make binding

 determinations” on R.S. 2477 rights-of-way. Id. at 757. We explained that such

 decisions are “a judicial, not an executive, function.” Id. at 752. Thus, when a

 claimant seeks to conclusively establish title to an R.S. 2477 right-of-way, that party

 must sue under the Quiet Title Act, 28 U.S.C. § 2409a. See United States v. Wells,

 873 F.3d 1241, 1260 (10th Cir. 2017) (collecting cases). But importantly, we advised

 that our decision did not “impugn[] BLM’s authority to make non-binding,

 administrative determinations.” SUWA v. BLM, 425 F.3d at 758. Indeed, we stated

 that BLM “has always had” the “authority” to determine “the validity of R.S. 2477

 rights of way for its own purposes.” Id. at 757.

       Second, we required R.S. 2477 holders to consult with the appropriate federal

 agency and obtain its approval before making improvements “beyond mere

 maintenance” to their rights-of-way.7 Id. at 748. Under this consultation requirement,

 the R.S. 2477 holder must: (1) advise “the federal land management agency of [such]

 work in advance”; (2) permit the agency a chance “to determine whether the



       7
          Ordinarily, entities seeking to make improvements on federal land must
 obtain a Title V permit under FLPMA. The Title V permit process requires applicants
 to submit “plans, contracts, agreements, or other information reasonably related to
 the use, or intended use, of the right-of-way, including its effect on competition,” to
 the Secretary of the Interior before the Secretary may grant, issue, or renew rights-of-
 way. 43 U.S.C. § 1761(b)(1).

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 proposed improvement is reasonable and necessary in light of the traditional uses of

 the rights of way as of October 21, 1976”; and (3) allow the agency the opportunity

 to study the “potential effects” of the improvements, and if needed, to “formulate

 alternatives” that protect the land. Id.

 III.   IM 2008-175

        In response to SUWA v. BLM, BLM and DOI issued internal memoranda in

 March 2006, May 2006, and August 2008 advising their employees on how to

 implement our decision nationwide. One of those internal memoranda—IM 2008-

 175—figures prominently in SUWA’s appeal.

        IM 2008-175 is titled “Consultation Process on Proposed Improvements to

 Revised Statute (R.S.) 2477 Rights-of-Way.” Appellant R. vol. 2 at 319. It declares

 that before the required consultation process can begin, “the validity of an asserted

 [right-of-way] must have been adjudicated by a Federal court or recognized by the

 BLM in an NBD [Nonbinding Determination].” Id. at 320.8 By its own terms, IM

 2008-175 was in force from August 8, 2008, until September 30, 2009.




        8
          An earlier internal memorandum, IM 2006-159, which expired on September
 30, 2007, sets forth a multistep process for BLM to follow in making NBDs. These
 steps include BLM reviewing “its public land records,” visiting the right-of-way
 sites, and publishing its preliminary determination for public comment. Appellee R.
 at 41–42. No party argues that BLM used the NBD process in rendering its R.S. 2477
 determination here. See, e.g., Opening Br. at 8 n.6 (“BLM does not claim to have
 followed the NBD process here.”).
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 IV.   The Burr Trail

       As mentioned, the Burr Trail is a 66-mile roadway crossing federally owned,

 scenic land in Garfield County, Utah. We have described the trail this way:

       Connecting the town of Boulder with Lake Powell's Bullfrog Basin
       Marina, the road at various points traverses across or next to unreserved
       federal lands, two wilderness study areas, the Capitol Reef National Park,
       and the Glen Canyon National Recreation Area. The trail has hosted a
       variety of uses: during the late 1800s and early 1900s to drive cattle,
       sheep and horses to market; around 1918 to facilitate oil exploration; and
       since the 1930s for various transportation, emergency, mineral,
       agricultural, economic development, and tourist needs.

 Sierra Club v. Hodel (“Hodel II”), 848 F.2d 1068, 1073 (10th Cir. 1988), overruled

 on other grounds by Vill. of Los Ranchos De Albuquerque v. Marsh, 956 F.2d 970

 (10th Cir. 1992). The parties describe the Burr Trail as consisting of four segments.

       This case concerns Garfield County’s desire to chip-seal the Stratton Segment,

 a 7.5-mile portion of Segment 3. The Stratton Segment “begins at the eastern

 boundary of Capitol Reef National Park and . . . . is bounded on the east by the

 Mount Pennell Wilderness Study Area [] and on the west by the Long Canyon Land

 with Wilderness Characteristics [] Unit.” Appellant R. vol. 1 at 19.

 V.    Factual Background

       A.     BLM’s Proceedings for the Chip-Sealing Project

       In 2009, Garfield County advised BLM of its plan to chip-seal the Stratton

 Segment. But Garfield County abandoned that proposed project. It lay dormant until

 2018, when Garfield County revived its plan.




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       During the consultation process with Garfield County about the project, BLM

 prepared an initial environmental assessment of the chip-sealing project. In that

 assessment, in a single sentence, BLM determined that “Garfield County [] is the

 holder of an R.S. 2477 [right-of-way] for the Burr Trail, which crosses federal public

 lands located in Garfield County, Utah.” Appellant R. vol. 1 at 190. After that, BLM

 reviewed each step of SUWA v. BLM’s consultation process and concluded that

 Garfield County had satisfied the requirements.9

       On April 1, 2019, BLM released its initial environmental assessment and its

 finding of no significant impact on the environment (“FONSI”) for public comment.

 On April 15, 2019, SUWA submitted comments challenging several aspects of

 BLM’s environmental assessment.10 SUWA’s present appeal concerns only its first

 comment. There, SUWA contested BLM’s determination that Garfield County has an


       9
         First, BLM determined that Garfield County’s chip-sealing project was
 “reasonable and necessary and, thus, within the scope of the [Garfield] County’s
 [right-of-way] for the Burr Trail.” Appellant R. vol. 1 at 191. Next, it considered
 whether the chip-sealing project would “adversely affect the surrounding public lands
 or resources and, if so, whether there are alternatives or modifications to the
 proposed improvement that would avoid or minimize such impacts.” Id. BLM
 concluded that the chip-sealing project would have minimal adverse effects on the
 environment.
       10
           In the same submission to BLM, SUWA argued: (1) that BLM had
 inadequately analyzed whether the chip-sealing project was “reasonable and
 necessary”; (2) that BLM needed to comply with the National Environmental Policy
 Act (“NEPA”) and FLPMA regardless of whether Garfield County holds an R.S.
 2477 right-of-way; (3) that the environmental assessment violated NEPA and
 FLPMA by failing to adequately analyze alternatives to the chip-sealing project; and
 (4) that in its environmental assessment, BLM did not take a sufficiently “hard look”
 at the chip-sealing project’s environmental effects. Appellant R. vol. 1 at 203–05.
 These issues aren’t raised on appeal.
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  R.S. 2477 right-of-way over the Stratton Segment (as part of the Burr Trail). SUWA

  argued that “for purposes of IM 2008-175,” Garfield County holds no R.S. 2477

  right-of-way over the Stratton Segment, because “[n]o federal court has ever quieted

  title to [Garfield] County for this stretch, nor has BLM recognized [Garfield]

  County’s R.S. 2477 claim in an administrative NBD.” Appellee R. at 65.11

        On April 22, 2019, BLM drafted an internal memo evaluating whether

  Garfield County has an R.S. 2477 right-of-way for the Stratton Segment. The memo

  referenced several administrative and judicial decisions supporting its long-held view

  that Garfield County holds an R.S. 2477 right-of-way over the entire Burr Trail—and

  thus the Stratton Segment too. Among the referenced documents was a 1984 BLM

  letter advising that “Garfield County does have a right-of-way for this road [Boulder

  to Bullfrog] pursuant to the terms of Revised Statute 2477.” Appellee R. at 24.

  Likewise, a 1987 BLM letter advised that “Garfield County does have a right-of-way

  for this road [Burr Trail] pursuant to the terms of Revised Statute 2477.” Id. The

  internal memo also cited several judicial decisions supporting the agency’s

  determination, including Sierra Club v. Hodel (“Hodel II”), 848 F.2d 1068 (10th Cir.

  1988) and its underlying district-court decision, Sierra Club v. Hodel (“Hodel I”),

  675 F. Supp. 594 (D. Utah 1987). Appellee R. at 25.


        11
           On April 18, 2019, SUWA filed a supplemental comment asserting
  additional reasons to oppose the chip-sealing project. The reasons included BLM’s
  alleged failing to take a “hard look at impacts to sensitive species,” its failing to
  comply with its “[d]uties in Manual 6840,” and its violating FLPMA’s non-
  impairment mandate by approving the chip-sealing project. Appellee R. at 80–82.
  These issues are not raised on appeal.
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         On April 26, 2019, BLM created a two-page comment-and-response grid

  summarizing SUWA’s comments and BLM’s responses. Importantly, BLM rejected

  SUWA’s position that Garfield County holds no R.S. 2477 right-of-way over the

  Stratton Segment. Though it didn’t reference most of the supporting court and agency

  sources mentioned in its internal memo, BLM did recognize Garfield County’s R.S.

  2477 right-of-way over the Burr Trail based on Hodel II. Below is a copy of SUWA’s

  comment and BLM’s response on the R.S. 2477 issue:

   Comment                                   Response

   SUWA 1                                    In Sierra Club v. Hodel, 848 F.2d 1068
   Garfield County does not hold an          (10th Cir. 1988), the Tenth Circuit Court
   adjudicated R.S. 2477 right of way to     of Appeals clearly stated that Garfield
   any segment of the Burr Trail nor an      County is the holder of an R.S. 2477 right-
   administrative Non-Binding                of-way (ROW) for the entire 66-mile
   Determination from the BLM.               length of the Burr Trail. In particular, after
                                             discussing the uses of the Burr Trail
                                             beginning in the late 1800s, and the
                                             County’s maintenance of the road
                                             beginning in the early 1940s, the court
                                             stated, “The combination of public uses
                                             and county maintenance has created a
                                             right-of-way in favor of Garfield County,
                                             pursuant to Congress’ grant of public land
                                             in R.S. 2477.” 848 F.2d at 1073. Further,
                                             the fact that the lawsuit, including the
                                             issues on appeal before the Tenth Circuit,
                                             concerned what improvements were
                                             within the scope of an R.S. 2477 ROW
                                             holder’s rights, underscores that the court
                                             recognized that the County holds an R.S.
                                             2477 ROW for the entire length of the
                                             Burr Trail. Based on the Hodel decision,
                                             the BLM recognizes that Garfield County
                                             is the holder of an R.S. 2477 ROW for the
                                             Burr Trail.


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  Appellant R. vol. 1 at 203.

        Later that same day, BLM notified Garfield County that it had completed the

  consultation process and authorized Garfield County to proceed with the chip-sealing

  project. Less than a week later, Garfield County began chip-sealing the Stratton

  Segment, completing the project in a few days.

        B.     District-Court Proceedings

        In May 2019, SUWA sued BLM and DOI, alleging that BLM’s approval of

  Garfield County’s chip-sealing project violated the APA. Among other arguments,12

  SUWA contended that BLM had acted arbitrarily and capriciously in determining

  that Garfield County holds an R.S. 2477 right-of-way over the Stratton Segment

  under IM 2008-175.

        The district court found no APA violation and dismissed SUWA’s claims.

  SUWA now appeals a single issue: whether the district court erred by ruling that

  BLM did not act arbitrarily and capriciously in determining that Garfield County

  holds an R.S. 2477 right-of-way over the Stratton Segment.




        12
           SUWA also argued: (1) that BLM had not sufficiently analyzed whether
  chip-sealing was “reasonable and necessary” in light of the traditional uses of the
  right-of-way, Appellant R. vol. 1 at 32; (2) that BLM had failed to “[a]dequately
  [a]nalyze [a]lternatives” to chip-sealing, id. at 32; and (3) that BLM had not taken a
  sufficiently “hard look” at the project’s expected environmental impacts, id. at 34.
  These issues aren’t before us on appeal.
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                                      DISCUSSION

  I.    Reviewability of BLM’s Right-of-Way Determination

        Under the APA, we have jurisdiction to review final agency actions. McKeen

  v. U.S. Forest Serv., 615 F.3d 1244, 1253 (10th Cir. 2010) (citing 5 U.S.C. § 704).

  An agency action is final if it (1) marks “the consummation of the agency’s

  decisionmaking process” and (2) is “one by which rights or obligations have been

  determined, or from which legal consequences will flow.” Farrell-Cooper Mining

  Co. v. U.S. Dep’t of the Interior, 728 F.3d 1229, 1235 (10th Cir. 2013) (citation

  omitted).

        Here, BLM’s approval of the chip-sealing project was a final agency action.

  BLM’s conclusion that Garfield County holds an R.S. 2477 right-of-way, that the

  project fell within the scope of the right-of-way, and that the improvement wouldn’t

  significantly impact the environment marked the “consummation of the agency’s

  decisionmaking process.” Id. The decision was also legally consequential for

  Garfield County, given that BLM’s conclusion allowed Garfield County to chip-seal

  the Stratton Segment. See id. Thus, because BLM’s approval of the chip-sealing

  project was a final agency action, we may review “preliminary, procedural, or

  intermediate agency action or ruling not directly reviewable . . . on the review of the

  final agency action.” 5 U.S.C. § 704. This includes BLM’s conclusion that Garfield

  County holds an R.S. 2477 right-of-way over the Stratton Segment.13


        13
          On appeal, the parties agree that we have jurisdiction to review this
  determination.
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  II.    Standard of Review

         We review de novo a district court’s decision in an APA case. OXY USA Inc.

  v. U.S. Dep’t of the Interior, 32 F.4th 1032, 1044 (10th Cir. 2022). We will set aside

  an agency’s factual findings “only if they are unsupported by substantial evidence.”

  Id. (quoting Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 704 (10th

  Cir. 2010)). “Substantial evidence is such relevant evidence as a reasonable mind

  might accept as adequate to support a conclusion.” Id.

         Ultimately, “[o]ur inquiry under the APA must be thorough, but the standard

  of review is very deferential to the agency.” Id. (internal quotations and citation

  omitted). This means we may set aside an agency’s decision only if it is “found to be

  arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the

  law.” 5 U.S.C. § 706(2)(A). An agency decision is arbitrary and capricious if it:

         (1) entirely failed to consider an important aspect of the problem, (2)
         offered an explanation for its decision that runs counter to the evidence
         before the agency, or is so implausible that it could not be ascribed to a
         difference in view or the product of agency expertise, (3) failed to base
         its decision on consideration of the relevant factors, or (4) made a clear
         error of judgment.

  W. Watersheds Project v. Bureau of Land Mgmt., 721 F.3d 1264, 1273 (10th Cir.

  2013) (citation omitted).

  III.   BLM’s Determination that Garfield County Holds an R.S. 2477 Right-of-
         Way Over the Stratton Segment

         BLM cannot make “binding determinations” about R.S. 2477 claims. SUWA v.

  BLM, 425 F.3d at 757. But BLM “has always had” the “authority” to determine “the

  validity of R.S. 2477 rights of way for its own purposes.” Id. (emphasis added).

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  Though SUWA doesn’t dispute that BLM has this authority, it still argues that

  BLM’s decision was arbitrary and capricious. It does so based on its view (1) that

  BLM purported to apply IM 2008-175 in its R.S. 2477 determination, but (2) that

  BLM failed to meet IM 2008-175’s requirements. See Reply Br. at 12 (“First, BLM

  expressly purported to follow the process described in Instruction Memorandum

  (“I.M.”) 2008-175.”). But SUWA’s argument rests on a faulty premise—our review

  of the record reveals that BLM never bound itself to IM 2008-175 in making its R.S.

  2477 determination.

         Certainly, SUWA relied on the expired IM 2008-175 as circumscribing what

  entities qualify for R.S. 2477 rights-of-way. See Appellee R. at 65. Its comment to

  BLM’s initial environmental assessment tracked IM 2008-175 in arguing that

  Garfield County had neither “an adjudicated R.S. 2477 right of way to any segment

  of the Burr Trial nor an administrative Non-Binding Determination from the BLM.”

  Appellant R. vol. 1 at 203.

         But BLM never cited IM 2008-175 nor mentioned that expired policy’s two

  ways of determining R.S. 2477 rights-of-way. Instead, BLM informally determined

  the right-of-way issue for its own purposes under SUWA v. BLM. It did so by relying

  on Hodel II, which declared that Garfield County has an R.S. 2477 right-of-way over

  the Burr Trail. See Hodel II, 848 F.2d at 1073 (stating that “Garfield County . . . has

  maintained the Burr Trail since the early 1940s” which “has created a right-of-way in

  favor of Garfield County, pursuant to Congress’ grant of public land in R.S. 2477”).



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        Though BLM solely cited Hodel II in its summary response to SUWA’s

  comment to the environmental assessment, BLM reviewed other supporting sources

  in making its determination. This is demonstrated by BLM’s April 22, 2019 internal

  memo on the R.S. 2477 issue, which references earlier BLM letters showing that

  BLM has “long taken the position that Garfield County holds an R.S. 2477 right-of-

  way” over the Burr Trail. Appellant R. vol. 2 at 437 n.94. Tellingly, as with its

  response to SUWA’s comment, BLM makes no mention of IM 2008-175 in the

  internal memo. Nor does it do so in assessing the R.S. 2477 issue in its environmental

  assessment or FONSI.

        Moreover, in the district court, BLM stated that it made its R.S. 2477

  determination for its own purposes under SUWA v. BLM—not IM 2008-175. See

  Appellant R. vol. 2 at 358 (arguing in the district court that “BLM reasonably

  determined for its own internal purposes that Garfield County holds an R.S. 2477

  right regarding the Burr Trail”). And BLM maintains that position on appeal. Federal

  Appellee Response Br. 17 (arguing on appeal that “BLM followed the process

  described by the Court in SUWA v. BLM and exercised the authority described in that

  opinion”).

        We thus reject SUWA’s effort to treat BLM’s citation to Hodel II in its

  response to SUWA’s comment as silent recognition that Hodel II had “adjudicated”

  the right-of-way as contemplated by IM 2008-175.14 In making its informal


        14
          We acknowledge SUWA’s point that an “adjudication” under IM 2008-175
  would likely require an R.S. 2477 claimant to bring a Quiet Title action. See Opening
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  determination for its own purposes, BLM cited Hodel II as support for its long-held

  view that Garfield County holds an R.S. 2477 over the Stratton Segment—nothing

  more.

          We also reject any argument that by citing IM 2008-175 in the required

  consultation process, BLM bound itself to IM 2008-175 on the R.S. 2477 issue. It

  doesn’t matter that the initial environmental assessment and FONSI reference

  IM 2008-175 regarding the consultation process.15 BLM acted within its discretion in

  not applying IM 2008-175 to the R.S. 2477 issue.

          In making its informal determination of Garfield County’s R.S. 2477 right-of-

  way for BLM’s own purposes, BLM rationally relied on Hodel II, which offered

  BLM this support: “Garfield County . . . has maintained the Burr Trail since the early

  1940s. The combination of public uses and county maintenance has created a right-

  of-way in favor of Garfield County, pursuant to Congress’ grant of public land in


  Br. at 18 (“[A]n R.S. 2477 claim can be adjudicated only by a federal court properly
  exercising jurisdiction through the Quiet Title Act.”). A prior internal memorandum
  attached to IM 2006-159 from the Secretary of the Interior noted that “if a claimant
  seeks a definitive, binding determination of its R.S. 2477 rights, it must file a claim
  under the Quiet Title Act, 28 U.S.C. § 2409a.” Appellee R. at 34. But this doesn’t
  matter here, because BLM didn’t apply—and didn’t have to apply—IM 2008-175 in
  determining the R.S. 2477 right-of-way.
          15
            See Appellant R. vol. 1 at 185 (“Pursuant to Tenth Circuit case law and
  Instruction Memorandum (IM 2008-175), BLM needs to complete the consultation
  process on the proposed chip seal project because chip-sealing a hard-packed dirt or
  gravel R.S. 2477 ROW is an improvement to the ROW.” (emphasis added)); id. at
  190 (“Pursuant to Tenth Circuit case law and IM 2008-175, BLM needs to complete
  the consultation process on the proposed chip seal project because chip-sealing a
  hard-packed dirt or gravel R.S. 2477 ROW is an improvement.” (emphasis added));
  id. at 200 (same).
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  R.S. 2477.” 848 F.2d at 1073. And Hodel II contains more statements supporting

  Garfield County’s R.S. 2477 claim: “We read the district court’s opinion as finding

  that sufficient use of the Burr Trail existed in 1934 to constitute an R.S. § 2477 right-

  of-way . . . . We agree with that conclusion[.]” Id. at 1079 n.10; see also Hodel I, 675

  F. Supp. 594 at 605 (district court finding that “the establishment and acceptance of

  the Burr Trail as an R.S. 2477 right-of-way is supported by overwhelming evidence”

  and that “Garfield County holds a valid right-of-way over the Burr Trail”).

        In sum, BLM acted rationally in relying on Hodel II (as well as its internal

  documents and judicial decisions, though they are not needed here) to reach its

  informal determination that Garfield County holds an R.S. 2477 right-of-way over

  the Stratton Segment. Thus, BLM’s determination was not “arbitrary, capricious, an

  abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C.

  § 706(2)(A).16

  IV.   SUWA’s Counterarguments

        SUWA argues that even if BLM did not purport to follow IM 2008-175’s

  procedures, BLM’s reliance on Hodel II is still arbitrary and capricious.

        First, SUWA contends that the parties in Hodel II conceded the existence of

  the right-of-way on appeal. See Opening Br. at 18–19; see also 848 F.2d at 1079

  (“On appeal, Sierra Club . . . now concedes the existence—but not the scope—of the


        16
           We agree with SUWA that these statements from Hodel II aren’t its holding.
  But that doesn’t matter. BLM can rely on the statements as support for its informal
  determination for its own purposes.

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  County’s right-of-way.”). So, in SUWA’s view, BLM could not have rationally relied

  on Hodel II to determine that Garfield County holds an R.S. 2477 right-of-way.

        Second, SUWA argues that it was improper for BLM to rely on Hodel II

  because the case “involved neither findings of fact nor conclusions of law relevant to

  the Stratton Segment.” Opening Br. at 19. In other words, because Hodel II did not

  involve the Stratton Segment, SUWA reasons that it would be arbitrary and

  capricious for BLM to conclude that Garfield County holds an R.S. 2477 over that

  portion of the Burr Trail.

        Neither argument persuades us. Ultimately, BLM was free to use any of Hodel

  II’s conclusions to make informal determinations about Garfield County’s R.S. 2477

  claim to the Stratton Segment. Here, even if the existence of an R.S. 2477 right-of-

  way wasn’t at issue, and even if the case involved Burr Trail sections other than the

  Stratton Segment, Hodel II states that Garfield County holds an R.S. 2477 right-of-

  way over the Burr Trail—without qualification. See Hodel II, 848 F.2d at 1073 (“The

  combination of public uses and county maintenance has created a right-of-way in

  favor of Garfield County, pursuant to Congress’ grant of public land in R.S. 2477.”).

  Given this plain statement, BLM did not act arbitrarily or capriciously in agreeing

  with that determination.17


        17
           In its reply brief, SUWA argues—for the first time—that BLM’s reliance on
  Hodel II would still be arbitrary and capricious because it applied an “outdated legal
  standard” to make its R.S. 2477 right-of-way determination. Reply Br. at 23. As we
  understand SUWA, because more-recent cases—SUWA v. BLM and San Juan Cnty.—
  adopted “modern legal standards” to determine R.S. 2477 rights-of-way, any reliance
  on decisions that predate those cases would be arbitrary and capricious. Reply Br. at
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                                     CONCLUSION

        For the reasons stated above, BLM did not violate the APA in concluding that

  Garfield County holds an R.S. 2477 right-of-way over the Stratton Segment. We

  affirm.




  23. This argument fails for two reasons. First, we do not consider arguments raised
  for the first time in a reply brief. Ferry v. Gonzales, 457 F.3d 1117, 1129 (10th Cir.
  2006). Second, we see nothing arbitrary and capricious about BLM’s reliance on the
  Hodel decisions “for its own purposes.” SUWA v. BLM, 425 F.3d at 757.
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