FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRED GARDNER; and CONCERNED
CITIZENS FOR LITTLE CANYON
MOUNTAIN, an Unincorporated
No. 09-35647
Association,
Plaintiffs-Appellants,
D.C. No.
2:07-cv-01722-SU
v.
OPINION
UNITED STATES BUREAU OF LAND
MANAGEMENT,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Garr M. King, Senior District Judge, Presiding
Argued and Submitted
January 10, 2011—Seattle, Washington
Filed April 7, 2011
Before: Susan P. Graber and Milan D. Smith, Jr.,
Circuit Judges, and Roger T. Benitez,* District Judge.
Opinion by Judge Milan D. Smith, Jr.
*The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
4625
4628 GARDNER v. BLM
COUNSEL
Marianne Dugan, Eugene, Oregon, for the plaintiffs-
appellants.
Nicholas DiMascio and Kathryn E. Kovacs, United States
Department of Justice, Environment & Natural Resources
Division, Washington, D.C., for the defendant-appellee.
OPINION
M. SMITH, Circuit Judge:
Plaintiffs-Appellants Fred Gardner and Concerned Citizens
for Little Canyon Mountain (sometimes collectively Gardner)
brought suit for declaratory and injunctive relief pursuant to
the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-
706, seeking to compel Defendant-Appellee United States
Bureau of Land Management (BLM) to prohibit off-road
vehicle use of Oregon’s Little Canyon Mountain area. The
district court granted summary judgment to the BLM. On
GARDNER v. BLM 4629
appeal, Gardner asserts that the BLM’s failure to close Little
Canyon Mountain to off-road vehicle use violated the Federal
Land and Policy Management Act of 1976 (FLPMA), 43
U.S.C. §§ 1701-1785, and off-road vehicle regulations, 43
C.F.R. pts. 8340-8342.
We have jurisdiction under 28 U.S.C. § 1291. We affirm.
We hold that the BLM did not, and was not required to, make
a finding that the off-road vehicle use of which Gardner com-
plains had caused “considerable adverse effects” on the
resources enumerated under 43 C.F.R. § 8341.2(a) and,
accordingly, we cannot compel the BLM to act to close Little
Canyon Mountain to off-road vehicle use. We also hold that
the BLM’s denial of Gardner’s petition to close Little Canyon
Mountain to off-road vehicle use was not arbitrary and capri-
cious.
FACTUAL AND PROCEDURAL BACKGROUND
Little Canyon Mountain is located in Grant County, Ore-
gon, in the BLM’s Prineville District. The BLM manages
approximately 2,500 acres of land in Little Canyon Mountain,
which is bordered by private property and the Strawberry
Mountain Wilderness.
Since 1985, when the John Day Resource Management
Plan (John Day RMP) was issued, Little Canyon Mountain
has been designated as “open use” year-round, thereby per-
mitting off-road vehicles to use the area. There are at least
five miles of documented trails that are accessible to smaller
off-road vehicles (less than fifty inches wide), and at least
twenty-six miles of road accessible to larger off-road vehicles,
such as trucks, within Little Canyon Mountain. Land within
Little Canyon Mountain has been described as steep terrain
with high-clay soil that ruts easily. Among its features is a
two-acre area, once used for mining, known as “the pit,”
which is especially popular with off-road vehicle users.
4630 GARDNER v. BLM
In 2003, the BLM undertook an environmental assessment
to ascertain the likely effects on Little Canyon Mountain of a
proposed project designed to decrease fire risk and improve
forest health by reducing fuels. The environmental assessment
predicted that the proposed fuels-reduction project would
likely increase off-road vehicle use in Little Canyon Mountain
and could lead, in five to ten years, to “noticeable” impacts
in the form of erosion, new trail routes, and a disturbance of
wildlife. To mitigate the potential impact of increased off-
road vehicle use, the proposal, as ultimately adopted, sug-
gested limiting access to “the pit” by vehicles more than fifty
inches wide. The proposal also created a forested buffer
around the pit to “provide a sight and sound barrier between
the pit and surrounding areas.” After the fuels-reduction proj-
ect was implemented, the BLM received numerous com-
plaints from adjacent land owners regarding off-road vehicle
use in and around the pit.
Gardner has lived adjacent to Little Canyon Mountain for
almost twenty years. After the fuels-reduction project was
implemented, he complained to the BLM about a dramatic
increase in year-round off-road vehicle use, including at night
and on weekdays. Concerned Citizens is an unincorporated
association whose members are local land owners, miners,
and grazers who claim to have been adversely affected by off-
road vehicle use in Little Canyon Mountain. Gardner and
Concerned Citizens filed a petition with the BLM in June
2006 asking the BLM “to immediately [ ] close BLM land on
Little Canyon Mountain to all recreational [off-road vehicle]
use.”
Christina Welch, the BLM’s Field Manager in charge,
responded by letter to Gardner’s petition. The letter stated that
Little Canyon Mountain could be closed pursuant to 43 C.F.R.
§ 8341.2(a) only if the offending off-road vehicle use was
causing “considerable adverse effects.” Welch further indi-
cated that she was not aware of any “significant, increased
resource damage” except that caused by pickup trucks.
GARDNER v. BLM 4631
Welch’s letter also stated that the BLM “would welcome any
specific, quantifiable information [Gardner] can provide” and
requested that Gardner “show [the BLM] specific instances
and locations of significant problems.” The BLM further
encouraged Gardner and other residents to be involved in the
John Day RMP revision process then underway.
On February 28, 2007, prompted by public health and
safety concerns after an off-road vehicle rider was struck by
a motor vehicle on the county road, the BLM limited off-road
vehicle use to “marked designated roads” and reiterated that
vehicles wider than fifty inches (pickup trucks) were not per-
mitted in “the pit” for public safety reasons.
Little Canyon Mountain remained open to off-road vehicle
use after the February 2007 accident, and Gardner and others
complained of continuing problems. The BLM initiated an
alternative dispute resolution process between the complain-
ing parties and off-road vehicle users, but it proved unsuc-
cessful in resolving the disputes between the parties. Gardner
filed suit on November 19, 2007. The district court granted
summary judgment to the BLM. Gardner timely appeals.
STANDARD OF REVIEW
We review a grant of summary judgment de novo. Swanson
v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996). Section
706 of the APA governs judicial review of the challenged
agency action or inaction here. 5 U.S.C. § 706; City of Saus-
alito v. O’Neill, 386 F.3d 1186, 1205 (9th Cir. 2004)
(“Because the statutes . . . do not contain separate provisions
for judicial review, our review is governed by the APA.”).
DISCUSSION
I. Statutory and Regulatory Framework
[1] Congress enacted the FLPMA in 1976, thereby giving
authority and direction to the BLM (through the Secretary of
4632 GARDNER v. BLM
the Interior) concerning the use and management of certain
federal lands. Federal Land Policy and Management Act of
1976, Pub. L. No. 94-579, 90 Stat 2743 (1976). The FLPMA
requires the BLM to “develop, maintain, and, when appropri-
ate, revise land use plans,” 43 U.S.C. § 1712(a), also known
as resource management plans (RMPs), 43 C.F.R. § 1610.2.
The FLPMA also requires the BLM to manage public lands
in accordance with “principles of multiple use and sustained
yield,” 43 U.S.C. § 1732(a), while contemporaneously enforc-
ing relevant environmental laws governing the use of public
lands, id. §§ 1701(a)(8), 1732(b). In this case, the BLM man-
ages Little Canyon Mountain in accordance with the require-
ments of the John Day RMP.
In 1972, President Nixon issued an Executive Order direct-
ing the BLM to “establish policies and provide for procedures
that will ensure that the use of off-road vehicles on public
lands will be controlled and directed so as to protect the
resources of those lands, to promote the safety of all users of
those lands, and to minimize conflicts among the various uses
of those lands.” Exec. Order No. 11,644, 37 Fed. Reg. 2877,
§ 1 (Feb. 8, 1972). Pursuant to the Nixon Order, the BLM is
required to monitor the effects of off-road vehicle use on pub-
lic lands and “from time to time amend or rescind designa-
tions of areas” in order to protect the environment. Id. § 8.
[2] In 1977, President Carter issued an Executive Order
amending and strengthening Order 11644. Exec. Order No.
11,989, 42 Fed. Reg. 26,959 (May 24, 1977). The Carter
Order directs the BLM, notwithstanding existing designations
under the relevant RMP, to immediately close areas or trails
where “the use of off-road vehicles will cause or is causing
considerable adverse effects on the soil, vegetation, wildlife,
wildlife habitat or cultural or historic resources of particular
areas or trails of the public lands.” Id. § 2.
[3] In response to the FLPMA, the Nixon and Carter
Orders, and other federal statutes, the Department of the Inte-
GARDNER v. BLM 4633
rior adopted new regulations regarding off-road vehicle use.
See 43 C.F.R. § 8340.0-1 et seq. These off-road vehicle regu-
lations require the BLM to designate lands as “open, limited,
or closed” to off-road vehicle use through the land-use pro-
cess, in consultation with interested parties and public com-
ments. 43 C.F.R. §§ 8342.1, 8342.2. The BLM also has
regulatory authority to change off-road vehicle use designa-
tions outside the RMP process. Of particular relevance to this
case, 43 C.F.R. § 8341.2(a) requires the immediate closure of
areas used by off-road vehicles when an “authorized officer
determines that off-road vehicles are causing or will cause
considerable adverse effects upon soil, vegetation, wildlife,
wildlife habitat, cultural resources, historical resources,
threatened or endangered species, wilderness suitability, other
authorized uses, or other resources.”
[4] We have previously held that 43 C.F.R. § 8341.2(a)
“creates a separate duty to close without regard to the desig-
nation process; it does not automatically become inoperative
once the Secretary exercises his discretion to designate the
land.” Sierra Club v. Clark, 756 F.2d 686, 690 (9th Cir.
1985). Thus, the BLM has authority to limit off-road vehicle
use in Little Canyon Mountain independent of the designa-
tions specified in the John Day RMP. The BLM also has
authority to close or limit access to public lands in order “[t]o
protect persons, property, and public lands and resources.” 43
C.F.R. § 8364.1(a).
II. 5 U.S.C. § 706(1), 43 U.S.C. § 1732(b), and 43 C.F.R.
§ 8341.2(a)
[5] Reviewing courts are authorized by 5 U.S.C. § 706(1)
to “compel agency action unlawfully withheld or unreason-
ably delayed.” The Supreme Court has clarified that “a claim
under § 706(1) can proceed only where a plaintiff asserts that
an agency failed to take a discrete agency action that it is
required to take.” Norton v. S. Utah Wilderness Alliance
(SUWA), 542 U.S. 55, 64 (2004).
4634 GARDNER v. BLM
[6] The Court explained the limited application of § 706(1)
by noting that its purpose “is to protect agencies from undue
judicial interference with their lawful discretion, and to avoid
judicial entanglement in abstract policy disagreements which
courts lack both expertise and information to resolve.” Id. at
66. In particular, “[t]he prospect of pervasive oversight by
federal courts over the manner and pace of agency compli-
ance with [broad] congressional directives is not contem-
plated by the APA.” Id. at 67. Even if a court believes that the
agency is withholding or delaying an action the court believes
it should take, the “ability to compel agency action is care-
fully circumscribed to situations where an agency has ignored
a specific legislative command.” Hells Canyon Pres. Council
v. U.S. Forest Serv., 593 F.3d 923, 932 (9th Cir. 2010) (cita-
tion and quotation marks omitted). Thus, in this instance,
unless the BLM is required to take certain actions with respect
to off-road vehicle use in Little Canyon Mountain, we cannot
compel the BLM to act. See Alvarado v. Table Mountain Ran-
cheria, 509 F.3d 1008, 1019-20 (9th Cir. 2007) (dismissing a
claim when the plaintiff could not establish that an agency
failed to take a discrete action that it was required to take).
In its summary judgment in favor of the BLM, the district
court made clear that it did not have authority to compel the
BLM to act, in the absence of a specific legislative or regula-
tory command. Gardner argues the district court erred because
the FLPMA and the BLM’s implementing regulations require
the BLM to close Little Canyon Mountain to off-road vehicle
use because of the significant negative effects generated by
off-road vehicle use. We disagree.
In the FLPMA, Congress created a broad statutory frame-
work setting forth the goals and management requirements
that it envisioned for public lands. It does not prescribe dis-
crete agency action that the BLM must take in this case, as
Gardner claims. In support of his argument, Gardner cites
§ 1732(b) of the FLPMA requiring that “[i]n managing the
public lands the Secretary shall, by regulation or otherwise,
GARDNER v. BLM 4635
take any action necessary to prevent unnecessary or undue
degradation of the lands.” 43 U.S.C. § 1732(b). However, in
SUWA, the Supreme Court considered §§ 1732(a) and 1782(c)
of the FLPMA and held that they did not require discrete
agency action. 542 U.S. at 66, 72. The Court reasoned that,
although the FLPMA mandates that the BLM preserve wilder-
ness and manage public lands in accordance with land use
plans, its mandates are not tantamount to a “specific statutory
command requiring” agency action. Id. at 71.
[7] While this case was brought under § 1732(b), we con-
clude 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). 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, 524 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 objec-
tives, SUWA, 524 U.S. at 66, because it does not specify pre-
cisely 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.
There is no evidence in the record before us that Little Can-
yon Mountain has suffered “unnecessary or undue degrada-
tion.” Said another way, there is no evidence that the BLM
has failed to meet the broad mandates set forth in 43 U.S.C.
§ 1732(b). Moreover, even if off-road vehicles were causing
“unnecessary or undue degradation,” it is within the BLM’s
discretion to decide how to remedy such harm and manage the
lands in accordance with the multiple-use directive set forth
in the FLPMA. See 43 U.S.C. § 1732(a). Thus, it would be
within the BLM’s discretion to choose appropriate measures
to address the environmental degradation, which may or may
4636 GARDNER v. BLM
not include closing the entire Little Canyon Mountain area to
off-road vehicle use. Accordingly, we hold that 43 U.S.C.
§ 1732(b) does not compel the BLM to close Little Canyon
Mountain to off-road vehicle use.
Gardner also claims that 43 C.F.R. § 8341.2(a) compels the
BLM immediately to close Little Canyon Mountain to off-
road vehicle use. Section 8341.2(a) provides:
[W]here the authorized officer determines that off-
road vehicles are causing or will cause considerable
adverse effects upon soil, vegetation, wildlife, wild-
life habitat, cultural resources, historical resources,
threatened or endangered species, wilderness suit-
ability, other authorized uses, or other resources, the
authorized officer shall immediately close the areas
affected to the type(s) of vehicle causing the adverse
effect until the adverse effects are eliminated and
measures implemented to prevent recurrence.
As we have previously held, 43 C.F.R. § 8341.2(a) does
create independent authority outside the RMP designation
process for the BLM to limit off-road vehicle use in areas
subject to considerable adverse effects. Sierra Club, 756 F.2d
at 690.
[8] Perhaps more importantly, the predicate to the BLM’s
regulatory mandate to close the areas affected by off-road
vehicle use is a finding by the BLM of “considerable adverse
effects” on the enumerated resources. Here, nothing in the
record suggests that the BLM has made a determination that
off-road vehicles are causing, or will cause, “considerable
adverse effects” to the resources listed in 43 C.F.R.
§ 8341.2(a). Gardner contends that the BLM was well aware
of “considerable adverse effects” based on evidence supplied
by the plaintiffs and did make, or should have made, a finding
of “considerable adverse effects.”1 In particular, Gardner
1
Gardner also submitted other incident reports, such as the Sheriff’s
report, detailing problems in the area. While this evidence certainly sup-
GARDNER v. BLM 4637
points to a report prepared for the 2003 environmental assess-
ment for the fuels-reduction project by the BLM’s off-road
vehicle specialist. But Gardner’s argument is not supported by
the record. Certainly the specialist’s report acknowledges
many of the actual and potential effects from off-road vehicle
use, of which Gardner complains, and predicted “noticeable”
impacts likely to result from more off-road vehicle users if the
fuels-reduction project were implemented. However, the spe-
cialist’s report was limited to predicting that a potential
impact from the fuels-reduction project could be increased
off-road vehicle use and potential noticeable impacts. The
report did not make a finding that off-road vehicle use had
reached or would reach the level of “considerable adverse
effects” on the resources enumerated in 43 C.F.R.
§ 8341.2(a). Even if these predicted adverse effects have
occurred, or are occurring, it is within the BLM’s discretion
to determine whether such effects are sufficiently “severe” to
constitute “considerable adverse effects.” See Sierra Club,
756 F.2d at 690-91.
There is no other evidence in the record that the BLM has
determined that off-road vehicle use is causing or will cause
“considerable adverse effects.” To the contrary, the BLM’s
Field Manager specifically told Gardner that she was not
aware of any significant adverse effects to Little Canyon
Mountain beyond the truck issue in the pit, even while she
solicited more evidence about such concerns from Gardner.
Further, 43 C.F.R. § 8341.2(a) does not specify a process
or particular timing for the BLM to determine when off-road
vehicles are causing “considerable adverse effects.” Rather,
ports Gardner’s argument that the plaintiffs are negatively affected by the
ongoing off-road vehicle use in Little Canyon Mountain, they are not spe-
cific to impacts on the resources listed in 43 C.F.R. § 8341.2(a). These
reports are, therefore, insufficient in and of themselves to require the BLM
to close Little Canyon Mountain to off-road vehicles.
4638 GARDNER v. BLM
the regulatory text gives the BLM discretion to decide how
and when a determination of “considerable adverse effects”
will be made. In contrast, the Supreme Court in SUWA pro-
vided examples of “ministerial or non-discretionary act[s]”
that would compel agency action. 542 U.S. at 64-65 (internal
quotation marks omitted). For example, the Court noted that
when implementing regulations are required “ ‘[w]ithin 6
months’ of the date of enactment of the Telecommunications
Act of 1996,” the Court could issue a judicial decree requiring
the prompt issuance of regulations but could not set forth the
content of the regulations. Id. at 65. Here, 43 C.F.R.
§ 8341.2(a) neither requires a particular process nor mandates
when a determination must be made. Moreover, we have no
authority to “order the agency to reach a particular result,” Mt.
St. Helens Mining & Recovery Ltd. P’ship v. United States,
384 F.3d 721, 728 (9th Cir. 2004), or to compel discretionary
agency action, Alvarado, 509 F.3d at 1019-20.
[9] We therefore conclude that the BLM has not made a
finding of “considerable adverse effects” that would trigger
the mandatory closure requirements of 43 C.F.R. § 8341.2(a).
In the absence of such a finding, 43 C.F.R. § 8341.2(a) does
not specify the timing or process for determining “consider-
able adverse effects.” Accordingly, we find that the BLM did
not fail to take a required, discrete agency action.
III. Applying the arbitrary and capricious standard
under 5 U.S.C. § 706(2)
[10] An agency’s decision must be upheld unless it is “ar-
bitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). “Review under
the arbitrary and capricious standard is narrow, and we do not
substitute our judgment for that of the agency.” Lands Coun-
cil v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc)
(citation, internal quotations marks and brackets omitted),
overruled in part on other grounds by Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7 (2008), as recognized by Am.
GARDNER v. BLM 4639
Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052
(9th Cir. 2009)).
A decision is arbitrary and capricious
only if the agency relied on factors Congress did not
intend it to consider, entirely failed to consider an
important aspect of the problem, or offered an expla-
nation 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.
Lands Council, 537 F.3d at 987 (internal quotation marks
omitted). Agency action is valid if the agency “considered the
relevant factors and articulated a rational connection between
the facts found and the choices made.” Arrington v. Daniels,
516 F.3d 1106, 1112 (9th Cir. 2008) (internal quotation marks
omitted).
[11] Here, the BLM’s denial of Gardner’s petition to close
Little Canyon Mountain to off-road vehicle use was not arbi-
trary and capricious.2 In June 2006, Gardner filed a petition
with the BLM asking the agency “to immediately [ ] close
BLM land on Little Canyon Mountain to all recreational [off-
road vehicle] use.” Gardner’s petition complained about a
number of things, ranging from noise to environmental degra-
dation. However, there is no evidence in the record that Gard-
ner provided the BLM with specific information or scientific
studies supporting his allegations of environmental damage
that would qualify as “considerable adverse effects” under 43
C.F.R. § 8341.2(a).
2
Gardner’s primary claim is that the BLM failed to act. The parties dis-
pute whether Gardner also sufficiently raised a challenge to final agency
action. Because the outcome of the case is not affected, we give Gardner
the benefit of the doubt on this issue. We interpret his complaint and brief-
ing on appeal as also asserting a challenge to the BLM’s denial of Gard-
ner’s petition to close Little Canyon Mountain to off-road vehicle use.
4640 GARDNER v. BLM
The BLM’s Field Manager responded to Gardner’s petition
by stating that Little Canyon Mountain could be closed under
43 C.F.R. § 8341.2(a) only when off-road vehicle use was
causing “considerable adverse effects.” She further wrote that
she was not aware of any “significant, increased resource
damage” other than that caused by pickup trucks. Pickup
trucks were already restricted from the pit as a result of the
BLM’s implementation of the fuels-reduction project. The
BLM can close Little Canyon Mountain to off-road vehicle
use, outside of the RMP revision process, only when the
resources listed in the regulatory requirements, here 43 C.F.R.
§ 8341.2(a)—“soil, vegetation, wildlife, wildlife habitat, cul-
tural resources, historical resources, threatened or endangered
species, wilderness suitability, other authorized uses, or other
resources”—suffer “considerable adverse effects.” The
BLM’s response clearly indicated that, based on the evidence
before it, the specific resources listed in the regulation were
not affected to the level required by 43 C.F.R. § 8341.2(a).
Gardner does not point to any other evidence in the record
where the specific resources listed above are being adversely
affected. In the absence of such evidence, the BLM articu-
lated a rational reason for not granting the petition, namely
that the regulatory requirements were not met.
As further evidence that the BLM did not act arbitrarily or
capriciously, we note that the BLM asked Gardner to come
forward with any evidence that the listed resources were
being affected. The BLM’s letter, after outlining the BLM’s
regulatory requirements under 43 C.F.R. § 8341.2(a), stated
that the agency “would welcome any specific, quantifiable
information you can provide” and requested Gardner to “show
us specific instances and locations of significant problems.”
The BLM further encouraged Gardner and other residents to
be involved in the RMP revision process.
[12] There is also evidence that the BLM is actively moni-
toring Little Canyon Mountain. Tellingly, when the BLM
determined that public health safety concerns arose after an
GARDNER v. BLM 4641
off-road vehicle rider was struck on the county road by a
motor vehicle, the agency promptly responded in accordance
with its regulatory requirements. The regulations provide that
the BLM may issue an order closing or restricting public
lands “[t]o protect persons, property, and public lands and
resources.” 43 C.F.R. § 8364.1(a). On February 28, 2007, the
BLM limited off-road vehicle use to “marked designated
roads” and reiterated that vehicles wider than fifty inches
(pickup trucks) were not permitted in “the pit” for the public
safety reasons.
[13] On this record, we cannot conclude that the BLM
acted in an arbitrary and capricious fashion. We therefore
hold that the BLM did not unreasonably deny Gardner’s peti-
tion to close Little Canyon Mountain to off-road vehicle use.
CONCLUSION
For the foregoing reasons, we affirm the district court.
AFFIRMED.