Montana Wilderness Association v. Gene Terland

discussion of NEPA and the NHPA. He also joined, in part,

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

MONTANA WILDERNESS ASS’N V. CONNELL

with the majority’s discussion of the Resource Management Plan’s compliance with the FLPMA and the Proclamation establishing the Monument. Judge Gould dissented from the majority’s conclusion that the RMP’s definition of “road” for purposes of the off-road travel ban was reasonable.

COUNSEL

Matthew K. Bishop (argued), Western Environmental Law Center, Helena, Montana, for Plaintiff-Appellant Montana Wilderness Association.

James S. Angell and Melanie R. Kay (argued), Earthjustice, Denver, Colorado, for Plaintiffs-Appellants The Wilderness Society, Friends of the Missouri Breaks Monument, National Trust for Historic Preservation and Oil and Gas Accountability Project.

Ignacia S. Moreno, Assistant Attorney General, Tyler Welti, Rachel K. Bowen, David C. Shilton, and Robert P. Stockman (argued), United States Department of Justice, Environment and Natural Resources Division, Washington, D.C.; Karan Dunnigan and Sarah Shattuck,…

Plaintiff environmental groups challenge the Bureau of Land Management’s (BLM) Resource Management Plan (RMP) for the Upper Missouri River Breaks National Monument (Monument). The district court granted summary judgment to the defendants on all claims. We affirm in part, reverse in part and remand. We hold that BLM complied with the Federal Land Policy and Management Act (FLPMA) and the National Environmental Policy Act (NEPA) but violated the National Historic Preservation Act (NHPA).

BACKGROUND

The Antiquities Act authorizes the President of the United States to “declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments.” 16 U.S.C. § 431 . In accordance with this authority, President Clinton issued a Proc *993 lamation establishing the Upper Missouri River Breaks National Monument in 2001. See Proclamation No. 7398, 66 FecLReg. 7359 (Jan. 17, 2001).

The Proclamation explains that:

Id. at 7359 . The Proclamation declares that the Monument, which comprises approximately…

concurring in part and dissenting in part:

I concur in the majority opinion’s discussion of the National Environmental Policy Act and the National Historic Preservation Act. I also join the majority’s discussion of the Resource Management Plan’s (RMP) compliance with the Federal Land Policy and Management Act of 1976 (FLPMA) and the Proclamation insofar as it concludes (1) that the RMP did not violate the requirement that Wilderness Study Areas remain roadless and unimpaired and (2) that allowing parking and dispersed camping within 50 feet of roads is reasonable under the administrative-purpose exception to the Proclamation’s off-road travel ban. But I part company with the majority’s conclusion that the RMP’s definition of “road” for purposes of the off-road travel ban is reasonable.

The Proclamation requires the Bureau of Land Management (BLM) to prepare a transportation plan that “prohibit[s] all motorized and mechanized vehicle use off road,” for the express “purpose of protecting the objects” of the Monument. Proclamation No. 7398, 3 C.F.R. § 7398 (2002). The off-road travel ban is intimately tied to the Proclamation’s protection of Monument objects and to its goal of…