FILED
NOT FOR PUBLICATION NOV 19 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROB BOWLER and JANA BOWLER, No. 11-35887
Plaintiffs - Appellants, D.C. No. 6:11-cv-06037-HO
v.
MEMORANDUM*
UNITED STATES BUREAU OF LAND
MANAGEMENT and UNITED STATES
DEPARTMENT OF THE INTERIOR,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding
Argued and Submitted November 9, 2012
Portland, Oregon
Before: ALARCÓN, TROTT, and PAEZ, Circuit Judges.
In this action, local landowners challenge BLM’s “Tioga Bridge Project” on
the North Umpqua River in southwestern Oregon, alleging violations of the
National Environmental Policy Act (NEPA), 42 U.S.C. § 4331 et seq.; the Wild
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and Scenic Rivers Act (WSRA), 16 U.S.C. § 1271 et seq.; and the Federal Land
Policy Management Act (FLPMA), 43 U.S.C. § 1701 et seq. Plaintiffs Rob and
Jana Bowler appeal from the district court’s grant of summary judgment to the
government. We review agency decisions under the arbitrary and capricious
standard of the APA. 5 U.S.C. § 706(2)(A).
With respect to Plaintiffs’ NEPA claims, we are not persuaded that BLM’s
decision not to issue an Environmental Impact Statement (EIS) for the Tioga
Bridge Project (“Project”) was arbitrary and capricious, nor do we find the review
in the Environmental Assessment (EA) to be inadequate. Under the deferential
review given to agency decisions, we affirm.
The Administrative Record—particularly the EA—shows that BLM took the
requisite “hard look” and adequately disclosed and analyzed the environmental
impacts of the Project. The EA discloses the scope of the Project, identifies
existing uses in the Project area, and explains both adverse and beneficial impacts
to uses in the Project area with quantitative data or reasonable estimates. The data
and reasoning in the EA support the agency's conclusion of no significant
environmental impact and the decision not to issue an EIS. Thus, we hold that
BLM did not act arbitrarily and capriciously by concluding that an EIS was not
required for the Tioga Project under the intensity factors prescribed in the
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regulations implementing NEPA. 40 C.F.R. 1508.27(b)(1)-(10). Although the
Plaintiffs emphasize some of the de minimis adverse impacts disclosed in the EA
as evidence that a full EIS is required, following Native Ecosystems Council v. U.S.
Forest Serv., any agency disclosure of “adverse impacts on wildlife species or
habitat or acknowledg[ment of] information favorable to a party that would prefer
a different outcome” does not mandate an EIS. 428 F.3d 1233, 1240 (9th Cir.
2005).
The EA also analyzed in detail the proposed Project and the required
no-action alternative, and discusses five additional alternatives. BLM's actions
were reasonable because an agency's obligation with the detail of an EA is less
than under an EIS and requires only a brief discussion of reasonable alternatives.
Native Ecosystems, 428 F.3d at 1238-39.
With respect to Plaintiffs’ claims that BLM violated the WSRA and the
FLMPA, we also affirm the district court’s judgment. Although it is not entirely
clear what specific provisions of these governing statutes Plaintiffs allege BLM
violated, we have carefully considered their arguments and we are not persuaded
that BLM failed to comply with the statutes’ requirements.
AFFIRMED.
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