Case 1:21-cv-01506 Document 1 Filed 06/03/21 Page 1 of 47
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`Conserve Southwest Utah
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`321 North Mall Dr., B202
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`St. George, UT 84790
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`Conservation Lands Foundation
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`835 E. 2nd Ave. #314
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`Durango, CO 81301
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`Center for Biological Diversity
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`378 N Main Ave.
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`Tucson, AZ 85701
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`Defenders of Wildlife
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`1130 17th Street NW
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`Washington, DC 20036
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`Southern Utah Wilderness Alliance )
`425 East 100 South
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`Salt Lake City, UT 84111
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`The Wilderness Society
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`1801 Pennsylvania Ave. NW
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`Suite 200
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`Washington, DC 20006
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`WildEarth Guardians
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`301 N. Guadalupe St. #201
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`Santa Fe, NM 87501
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`Plaintiffs,
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`v.
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`U.S. Department of the Interior
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`1849 C St., NW
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`Washington, DC 20240
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`Bureau of Land Management
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`760 Horizon Drive
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`Grand Junction, CO 81506
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`Defendants.
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`Case No. 21-CV-1506
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`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF
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`Case 1:21-cv-01506 Document 1 Filed 06/03/21 Page 2 of 47
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`INTRODUCTION
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`1.
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`This case challenges the decision of the Defendants U.S. Department of the
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`Interior and Bureau of Land Management granting a right-of-way for a new four-lane highway—
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`the so-called Northern Corridor Highway—through the Red Cliffs National Conservation Area
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`and Mojave desert tortoise critical habitat, together with related decisions to modify and amend
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`two governing land use plans.
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`2.
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`In 2009, Congress created the 45,000-acre Red Cliffs National Conservation Area
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`(Red Cliffs NCA) to protect its world-class ecological, scenic, wildlife, recreational, cultural,
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`historical, natural, educational, and scientific resources. 42 U.S.C. §460www (“Omnibus Public
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`Land Management Act” or “Omnibus Act”). Congress required that Bureau of Land
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`Management (BLM) “shall” limit uses in the Red Cliffs NCA only to those uses that would
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`“conserve, protect, and enhance” these resources. Id. at § 460www(e).
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`3.
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`On January 15, 2021, then Secretary of the Interior David Bernhardt approved the
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`issuance of a right-of-way to allow the Utah Department of Transportation to construct, operate,
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`and maintain the Northern Corridor Highway across 2.37 miles of federal public lands within the
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`Red Cliffs NCA, including public lands containing the densest concentration of Mojave desert
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`tortoise—a species protected under the Endangered Species Act (ESA)—in the entire region. At
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`the same time, Secretary Bernhardt also approved two land use plan amendments to allow the
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`Northern Corridor Highway on federal public lands.
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`4.
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`Secretary Bernhardt’s approvals run headlong into the management mandates of
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`Omnibus Act, together with our Nation’s bedrock environmental and cultural resource laws,
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`including the Land and Water Conservation Act of 1964, National Environmental Policy Act
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`(NEPA), and National Historic Preservation Act (NHPA). Indeed, Defendants acknowledge that
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` COMPLAINT – 2
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`Case 1:21-cv-01506 Document 1 Filed 06/03/21 Page 3 of 47
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`the Northern Corridor Highway will adversely impact the conservation, cultural, and recreational
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`resources within the Red Cliffs NCA.
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`5.
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`In addition, the Northern Corridor Highway right-of-way is sited immediately
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`over, through, and adjacent to numerous land parcels that BLM acquired with almost $20 million
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`from the Land and Water Conservation Fund for conservation, endangered species habitat
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`protection, and recreation purposes. Yet, Defendants never examined the impacts of the
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`Northern Corridor Highway on many of these parcels; and Utah Department of Transportation’s
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`planned highway violates the express conservation purposes informing these acquisitions. As a
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`court recently held, when lands are acquired using monies from the Land and Water
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`Conservation Fund, they must be managed according to the purposes for which they were
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`acquired, and an agency cannot permit a use inconsistent with the acquisition purposes. Gifford
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`Pinchot Task Force v. Perez, 2014 WL 3019165, *10 (D. Ore. July 3, 2014).
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`6.
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`Defendants similarly ignored the direct, indirect, and cumulative impacts of the
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`Northern Corridor Highway on local population growth, noise and other factors; and they never
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`considered the overlapping and cumulative impacts on desert tortoise populations and habitat
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`together with recent fires and other anticipated development in the Red Cliffs NCA.
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`7.
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`Secretary Bernhardt approved these actions over the objections of the Hopi Tribe
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`and local, regional, and national conservation groups, which repeatedly raised concerns
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`regarding the inadequacy of BLM’s consultation over the adverse impacts of the Northern
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`Corridor Highway on cultural and historic properties, and inadequate environmental analysis.
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`Indeed, in his haste to approve the Northern Corridor Highway, Secretary Bernhardt violated the
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`NHPA by approving the Northern Corridor right-of-way without first minimizing and mitigating
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`the acknowledged adverse impacts on cultural and historic resources. In fact, the federal
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` COMPLAINT – 3
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`Advisory Council on Historic Preservation—the federal agency charged with implementing the
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`NHPA—concluded BLM’s NHPA compliance was “flaw[ed].”
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`8.
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`Secretary Bernhardt’s hasty approval of the Northern Corridor right-of-way and
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`associated actions threatens irreparable environmental and other harms by Defendants’ unlawful
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`actions, and Plaintiffs seek such emergency, preliminary, or permanent injunctive relief as
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`necessary to forestall such irreparable harms and protect the public interest pending adjudication
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`of their claims.
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`JURISDICTION AND VENUE
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`9.
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`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §
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`1331 (federal question). This Court also can provide relief under 28 U.S.C. § 2201 (declaratory
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`judgment), 28 U.S.C. § 2202 (injunctive relief), and the Administrative Procedure Act, 5 U.S.C.
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`§§ 553, 702, and 706 (APA).
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`10.
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`The challenged agency actions are final and subject to judicial review pursuant to
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`5 U.S.C. §§ 702, 704, and 706.
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`11.
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`Plaintiffs have exhausted all required administrative remedies prior to filing this
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`lawsuit.
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`12.
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`Venue in the District of Columbia is appropriate under 28 U.S.C. § 1391(e)(1)
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`because Defendant U.S. Department of Interior is an agency of the United States with its primary
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`offices located in Washington, D.C.; two Plaintiffs are headquartered in this District, and three
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`other Plaintiffs have offices here; and a substantial part of the events and omissions at issue
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`occurred in this District, including Secretary Bernhardt’s approval of the right-of-way and
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`issuance of the amended land use plans.
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` COMPLAINT – 4
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`Case 1:21-cv-01506 Document 1 Filed 06/03/21 Page 5 of 47
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`PARTIES
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`13.
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`Plaintiff CONSERVE SOUTHWEST UTAH (CSU) is non-profit organization
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`based in St. George, Utah, working to protect the natural resources and quality of life in
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`Washington County, Utah through direct advocacy of conservation and of Smart Growth policies
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`that enable conservation, for the benefit of present and future generations. CSU promotes a
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`vision of vibrant, compact communities, anchored in high-tech, tourism, and outdoor recreation
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`industries, which prioritize conservation and stewardship of land, air and water resources for the
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`long-term sustainability of both these natural resources and the communities. CSU has about
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`2,500 members and supporters, many of whom live near and recreate in Red Cliffs NCA on a
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`regular basis. Since its inception in 2006, CSU has been a leader in engagement on public lands
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`conservation in southwest Utah, especially in the Red Cliffs NCA. In addition to advocacy, CSU
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`staff has spent thousands of hours and organized thousands of volunteer hours to benefit Red
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`Cliffs NCA on the ground, including invasive species removal, litter pick-up, trail maintenance,
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`habitat restoration, and archaeological site stewardship.
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`14.
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`Plaintiff CONSERVATION LANDS FOUNDATION, Inc. (CLF) is a non-profit
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`organization headquartered in Durango, Colorado. CLF’s organizational purpose is to promote
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`environmental conservancy through assisting the National Landscape Conservation System (also
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`known as the National Conservation Lands) and preserving open space and wilderness. Upon
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`information and belief, CLF is the only non-profit in the country specifically dedicated to
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`establishing and safeguarding National Conservation Lands under the care of the BLM. To
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`fulfill its purpose, CLF works to protect, restore, and expand the National Conservation Lands—
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`including the Red Cliffs NCA-—through education, advocacy, and partnership. CLF maintains
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`regional offices in the District of Columbia and five states.
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` COMPLAINT – 5
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`15.
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`Plaintiff CENTER FOR BIOLOGICAL DIVERSITY (Center) is a non-profit
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`corporation headquartered in Tucson, Arizona, with staff and members living and working in
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`Utah. The Center also has an office in Washington, D.C. The Center has approximately 1.7
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`million members throughout the United States and the world. The Center’s mission is to ensure
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`the preservation, protection, and restoration of biodiversity, native species, ecosystems, public
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`lands and waters, and public health through science, policy, and environmental law. Based on
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`the understanding that the health and vigor of human societies and the integrity and wildness of
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`the natural environment are closely linked, the Center is working to secure a future for animals
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`and plants hovering on the brink of extinction, for the ecosystems they need to survive, and for a
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`healthy, livable future for us all. The Center has worked to protect the threatened desert tortoise
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`for well over 25 years through constructive comments on project proposals and land use plans,
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`recovery efforts, and when necessary, litigation.
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`16.
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`Plaintiff DEFENDERS OF WILDLIFE (Defenders) is a national non-profit
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`conservation organization with more than 1.38 million members and supporters. Defenders is
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`headquartered in Washington, D.C., with offices throughout the country. Defenders focuses in
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`particular on conserving and recovering wildlife species that are listed under the ESA or
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`otherwise recognized as being of conservation concern. Defenders has a consistent track record
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`of working on Mojave desert tortoise conservation issues for well over three decades. Defenders
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`advocates for the Mojave desert tortoise in multiple ways, including through scientific research,
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`engagement in land management planning processes, engagement with solar energy projects
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`proposed in Mojave desert tortoise habitat, and petitions to government agencies for heightened
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`conservation protections.
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` COMPLAINT – 6
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`17.
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`Plaintiff SOUTHERN UTAH WILDERNESS ALLIANCE (SUWA) is a non-
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`profit organization based in Salt Lake City, Utah. SUWA also has offices in Washington, D.C.;
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`Moab, Utah; and Chicago, Illinois. It has more than 15,000 members from all 50 states and
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`several foreign countries. SUWA’s mission is the preservation of the outstanding wilderness and
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`other sensitive public lands at the heart of the Colorado Plateau. SUWA advocates for proper
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`management of these lands, and the associated natural and cultural resources, in their natural
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`state for the benefit of all Americans. SUWA promotes local and national recognition of the
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`region’s unique character through research and public education; supports both administrative
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`and legislative initiatives to permanently protect Utah’s wild places within the National Park and
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`National Wilderness Preservation Systems or by other protective designations where appropriate;
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`and builds support for such initiatives on both the local and national level.
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`18.
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`Plaintiff THE WILDERNESS SOCIETY (TWS) is a non-profit corporation
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`incorporated and headquartered in the District of Columbia with approximately 136,000
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`members. TWS’ mission is to unite people to protect America’s wild places. Its goal is to
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`ensure that future generations will enjoy the clean air and water, wildlife, natural beauty,
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`opportunities for recreation, and spiritual renewal that pristine forests, rivers, deserts, and
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`mountains provide. For more than three decades, TWS has worked to protect wilderness
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`character lands in Utah. Since 2009, TWS has been actively engaged in the resource
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`management planning process for the Red Cliffs NCA, including meeting with BLM more than
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`30 times.
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`19.
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`Plaintiff WILDEARTH GUARDIANS (Guardians) is a non-profit organization
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`headquartered in Santa Fe, New Mexico that is dedicated to protecting and restoring the wildlife,
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`wild places, wild rivers, and health of the West. Guardians has more than 7,000 members.
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` COMPLAINT – 7
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`Guardians advocates for public land management that protects wildlife and their habitat,
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`including the Red Cliffs NCA to protect the Mojave desert tortoise.
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`20.
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`Plaintiffs each bring this action on their own behalf, and on behalf of their
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`members, staff, and supporters who live and work near the Red Cliffs NCA. Plaintiffs’
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`members, staff, and supporters enjoy viewing and studying wildlife, and recreating in natural
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`environments that they know are inhabited and sustained by diverse wildlife, including the
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`Mojave desert tortoise. Such members, staff, and supporters derive recreational, scientific,
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`aesthetic, inspirational, educational, and other benefits from such use. These uses include hiking,
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`camping, trail running, mountain biking, appreciation of archaeological resources and natural
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`quiet, journaling, birdwatching, ecosystem research, and photography. They regularly enjoy Red
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`Cliffs NCA for these uses and plan to continue doing so.
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`21.
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`These uses are incompatible with construction and use of the Northern Corridor
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`Highway through the heart of Mojave desert tortoise habitat in the Red Cliffs NCA as approved
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`by Defendants. The Northern Corridor Highway harms Plaintiffs and their members, staff and
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`supporters, because the highway will destroy wildlife habitat and vegetation and diminish their
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`use and enjoyment of the area, and because they are concerned with protecting the wildlife,
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`plants, scenery, and other natural values of the Red Cliffs NCA, as well as its archeological and
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`cultural resources. Plaintiffs’ members, staff and supporters also enjoy using federal public
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`lands that are wild and not burdened by development such as roads, invasive species, unnatural
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`structures, and other human developments that mar the landscape, create noise and pollution,
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`fragment and degrade wildlife habitat, and generally detract from a quality natural experience.
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`22.
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`Plaintiffs and their members, staff and supporters, as well as their children,
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`grandchildren, and future descendants, will be significantly and irreparably injured by the
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` COMPLAINT – 8
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`construction and operation of the Northern Corridor Highway. On behalf of their members, staff
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`and supporters, Plaintiffs seek to protect the wildlife, scenery, and other natural values of the Red
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`Cliffs NCA from the direct, indirect, and cumulative impacts of the Northern Corridor Highway
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`so that they can continue using and enjoying the area.
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`23.
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`All Plaintiffs suffer an injury-in-fact because they have all devoted time, energy,
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`and money to protecting public lands and wildlife, and advocating for only responsible
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`management of the Red Cliffs NCA. Plaintiffs have diverted resources from other efforts to
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`pursue their missions and have instead used those resources to submit public comment to the
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`BLM, file administrative objections, and engage with local, state, and federal officials about their
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`concerns with the Northern Corridor Highway.
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`24.
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`Defendants’ violations of the Omnibus Act, Land and Water Conservation Fund
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`Act, NEPA, NHPA, APA, and other laws in adopting the challenged decisions have injured and
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`will continue to injure Plaintiffs’ recreational, aesthetic, scientific, educational, spiritual,
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`conservation, commercial, informational and other interests, and the interests of their staff,
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`members, and supporters. These are actual, concrete injuries caused by Defendants’ legal
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`violations, for which judicial review and the relief requested is required to redress. Plaintiffs
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`have no adequate remedy at law.
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`25.
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`Defendant UNITED STATES DEPARTMENT OF THE INTERIOR is a federal
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`agency responsible for managing about 500 million acres of federal public lands across the
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`United States. The Department of the Interior, through its sub-agency BLM, is charged with
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`managing the public lands and resources in Red Cliffs NCA, and decides whether to approve
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`activities necessary for road construction on land it administers, including rights-of-way and
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`amendments to resource management plans that allow rights-of-way. Secretary Bernhardt acted
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` COMPLAINT – 9
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`on behalf of the Department of Interior in approving the Northern Corridor right-of-way and land
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`use plan amendments challenged here.
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`26.
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`Defendant BUREAU OF LAND MANAGEMENT is a federal agency within the
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`Department of the Interior. BLM is responsible for managing the Red Cliffs NCA, conducting
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`NEPA and NHPA assessments and procedures, and deciding whether to approve the Northern
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`Corridor Highway right-of-way and related activities such as road construction and Resource
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`Management Plan amendments that allow rights-of-way.
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`LEGAL FRAMEWORK
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`Omnibus Public Land Management Act of 2009
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`In March 2009, Congress passed and President Obama signed the Omnibus Public
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`A.
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`27.
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`Land Management Act. Pub. L. No. 111-11, 123 STAT. 991 (2009). Among other provisions,
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`the Omnibus Act created the Red Cliffs NCA. 42 U.S.C. § 460www.
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`28.
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`The Red Cliffs NCA includes a total of approximately 44,725 acres of public
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`lands in Washington County, Utah.
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`29.
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`Congress designated the Red Cliffs NCA to “conserve, protect, and enhance for
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`the benefit and enjoyment of present and future generations the ecological, scenic, wildlife,
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`recreational, cultural, historical, natural, educational, and scientific resources of the National
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`Conservation Area.” 42 U.S.C. § 460www(a)(1)(a). Congress also designated the Red Cliffs
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`NCA to protect “each” endangered or threatened wildlife species located within it, including the
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`Mojave desert tortoise. Id. § 460www(a)(2).
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`30.
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`Congress directed that the Secretary of the Interior “shall” manage the Red Cliffs
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`NCA “in a manner that conserves, protects, and enhances the resources of the National
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`Conservation Area,” and Congress directed that the Secretary “shall only allow uses of the
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` COMPLAINT – 10
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`National Conservation Area that the Secretary determines would further” the statute’s underlying
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`conservation and cultural purposes, described above. Id. § 460www(e).
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`B.
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`31.
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`Land and Water Conservation Fund Act of 1964
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`The Land and Water Conservation Fund Act became law on January 1, 1965. 54
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`U.S.C. §§ 200301–310; Pub. L. No. 88-578. The purposes of the act are:
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`to assist in preserving, developing, and assuring accessibility to all citizens . . .
`such quality and quantity of outdoor recreation resources as may be available and
`are necessary and desirable for individual active participation in such recreation
`and to strengthen the health and vitality of the citizens of the United States by (1)
`providing funds for and authorizing Federal assistance to the States in planning,
`acquisition, and development of needed land and water areas and facilities and (2)
`providing funds for the Federal acquisition and development of certain lands and
`other areas.
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`Pub. L. No. 88-578. In enacting this statute, Congress sought to facilitate the preservation,
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`development, and accessibility of outdoor recreation resources by providing funds “for the
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`acquisition of land, water, or an interest in land or water within inholdings within . . . areas [that]
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`are primarily of value for outdoor recreation purposes.” 54 U.S.C. § 200306(a)(2)(B)(i)(II).
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`32.
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`The Land and Water Conservation Fund consists of state-side and federal-side
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`acquisition programs. The state-side program provides matching grants to the States and local
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`governments for the acquisition and development of public parks, outdoor recreation areas, and
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`facilities. Id. § 200305. Acquisitions funded through the state-side program must remain in
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`recreation use in perpetuity, unless the Secretary of the Interior approves the conversion of the
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`land to another use, and acceptable replacement lands are substituted. Id. § 200305(f)(3).
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`33.
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`The federal-side acquisition program represents the principal source of funds for
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`federal acquisition of land. Id. § 200306. The statute provides that “unless otherwise allotted in
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`the appropriation Act making them available,” appropriations from the fund for federal purposes
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`are to be allotted by the President for certain activities. Id. § 200306(a)(1). These activities
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` COMPLAINT – 11
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`include land acquisition in recreation areas administered by the Secretary of the Interior for
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`recreational purposes; land acquisition in national park, national forest, and national wildlife
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`refuge system units; and land acquisitions that foster access to federal land for recreational
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`purposes. See id. § 200306.
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`34.
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`Lands and interests in lands acquired through the federal-side acquisition program
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`must remain in Federal ownership, and—unlike the state-side program—there is no allowance
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`for “converting” or using acquired lands for purposes other than those for which they were
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`acquired. Compare id. § 200305(f)(3) (explicitly permitting conversion of state-side
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`acquisitions), with id. § 200306 (federal-side program) (including no reference to permitting
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`conversion to other uses in the federal-side program). See also id. § 200303(c)(3) (requiring that
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`funds expended “shall be consistent with the requirements for recreational public access for
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`hunting, fishing, recreational shooting, or other outdoor recreational purposes”).
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`35.
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`The purposes guiding the acquisition of lands through the federal-side program
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`“control[] not just the initial acquisition of the lands, but the manner of their development post
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`acquisition.” Perez, 2014 WL 3019165 at *10.
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`C.
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`36.
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`National Environmental Policy Act
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`NEPA is the Nation’s basic national charter for protection of the environment.
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`See 40 C.F.R. § 1500.1(a).1 NEPA’s twin aims are: (1) to foster informed decision making by
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`1 On July 16, 2020, the Council on Environmental Quality issued a Final Rule amending its
`NEPA regulations, found at 40 C.F.R. Parts 1500-1508. See Update to the Regulations
`Implementing the Procedural Provisions of the National Environmental Policy Act, 85 Fed. Reg.
`43304 (July 16, 2020) (“CEQ Final Rule”). The CEQ Final Rule became effective September
`15, 2020, and applies to any NEPA process begun after September 14, 2020. An agency may
`choose to apply the regulations to ongoing activities and environmental documents begun before
`September 14, 2020. Here, BLM applied the Council on Environmental Quality’s NEPA
`regulations in place at the time the NEPA process was initiated through publication of the Notice
`of Intent on December 5, 2019.
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` COMPLAINT – 12
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`requiring agencies to consider the environmental impacts of their proposed actions; and (2) to
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`ensure that agencies inform the public that they considered environmental concerns. 42 U.S.C. §
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`4331; 40 C.F.R. § 1500.1. To accomplish these goals, federal agencies must prepare an
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`Environmental Impact Statement (EIS) to consider the effects of each “major Federal action[ ]
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`significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C).
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`37.
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`An EIS must take a hard look at the environmental impacts of a proposed action
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`before reaching a decision and “provide full and fair discussion of significant environmental
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`impacts.” 40 C.F.R. § 1502.1; 42 U.S.C. § 4332(C). An EIS must also “[r]igorously explore and
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`objectively evaluate all reasonable alternatives” and explain why other alternatives were
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`eliminated from detailed study. 40 C.F.R. § 1502.14(a); 42 U.S.C. § 4332(C)(iii), (E).
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`38.
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`NEPA requires that an EIS analyze the “direct effects, which are caused by the
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`action and occur at the same time and place,” as well as “indirect effects, which are . . . later in
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`time or farther removed in distance, but are still reasonably foreseeable” and cumulative impacts,
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`which are those resulting “from the incremental impact of the action when added to other past,
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`present, and reasonably foreseeable future actions.” 40 C.F.R. §§ 1508.7–1508.8.
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`39.
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`To fulfill NEPA’s public participation goals, federal agencies must assess and
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`consider comments both individually and collectively and properly respond to comments in a
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`final EIS. Id. §§ 1502.9(c), 1503.4(a). If an agency “makes substantial changes in the proposed
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`action that are relevant to environmental concerns” or “[t]here are significant new circumstances
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`or information relevant to environmental concerns and bearing on the proposed action or its
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`impacts[,]” an agency must issue a supplemental draft and final EIS. Id. § 1502.9(d).
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`40.
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`At the time of its decision, an agency must release a “record of decision” that
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`identifies and discusses all factors that the agency balanced when making its decision and state
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`how those considerations entered into its decision. Id. § 1505.2.
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`D.
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`41.
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`National Historic Preservation Act
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`NHPA, 54 U.S.C. §§ 300101–320303, formally recognizes historic preservation
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`as an important policy of the United States. Section 106 of the NHPA seeks to protect America’s
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`heritage in part by requiring federal agencies to take into account the effects of their
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`“undertakings” on historic properties. See 54 U.S.C. § 306108; 36 C.F.R. § 800.1(a).
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`42.
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`The Section 106 process entails four basic steps. First, the responsible agency
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`must “determine whether the proposed Federal action is an undertaking . . . and, if so, whether it
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`is a type of activity that has the potential to cause effects on historic properties.” Id. § 800.3(a).
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`An “undertaking” is any “project, activity, or program . . . requiring a Federal permit, license or
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`approval.” Id. § 800.16(y). A “historic property” is “any prehistoric or historic district, site,
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`building, structure, or object included on, or determined eligible for inclusion on, the National
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`Register [of Historic Places]” (“National Register”). Id. § 800.16(l)(1); 54 U.S.C. § 300308.
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`43.
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`Second, if the agency undertaking has the potential to affect historic properties,
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`the agency must define the Area of Potential Effects for the action. 36 C.F.R. § 800.4. The
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`NHPA regulations define the Area of Potential Effects as:
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`the geographic area or areas within which an undertaking may directly or
`indirectly cause alterations in the character or use of historic properties . . . 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.
`
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`Id. § 800.16(d).
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`44.
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`Third, the agency must make a “reasonable and good faith effort” to identify
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`historic and cultural properties within the Area of Potential Effects. Id. § 800.4(b)(1). This
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`Case 1:21-cv-01506 Document 1 Filed 06/03/21 Page 15 of 47
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`effort “may include background research, consultation, oral history interviews, sample field
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`investigation, and field survey.” Id. § 800.4(b)(1).
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`45.
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`Fourth, if the agency finds that eligible properties are present in the Area of
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`Potential Effects, it must assess whether the proposed undertaking may cause adverse effects on
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`the identified historic properties, in coordination with consulting parties. 36 C.F.R. §§ 800.4(d),
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`800.5. The definition of “adverse effect” is broad: “An adverse effect is found when an
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`undertaking may alter, directly or indirectly, any of the characteristics of a historic property that
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`qualify the property for inclusion in the National Register in a manner that would diminish the
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`integrity of the property’s location, design, setting, materials, workmanship, feeling, or
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`association.” Id. § 800.5(a)(1) (emphasis added).
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`46.
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`An important part of this so-called “Section 106” review process is consultation
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`with the appropriate State Historic Preservation Officer (SHPO), Native American tribes, and
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`other interested parties, such as Plaintiffs. The Section 106 process concludes with an agency
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`determination of “adverse effect” or “no adverse effect.” See id. § 800.5(d).
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`47.
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`If the agency reaches an “adverse effect” finding, it must notify all consulting
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`parties and invite their views to assess adverse effects. Id. If adverse effects cannot be resolved,
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`the process is elevated again to the Advisory Council on Historic Preservation and the head of
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`the agency undertaking the action. Id. § 800.7. Until this process is complete, the undertaking in
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`question cannot go forward.
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`48.
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`An agency may use the NEPA process to comply with Section 106 in lieu of
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`separate procedures set forth specifically for Section 106 consultation if the agency has notified
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`in advance the State Historic Preservation Officer and the Advisory Council, and meets
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`consultation and analysis requirements. See id. § 800.8(c).
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`49.
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`Importantly, if during the preparation of its NEPA analysis the agency concludes
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`that the effects of the undertaking on historic properties are adverse, the agency shall develop
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`and adopt measures to avoid, minimize, or mitigate such effects. Id. § 800.8(c)(4).
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`E.
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`50.
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`Administrative Procedure Act
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`The APA governs judicial review of agency actions and provides a right to
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`judicial review for any “person suffering legal wrong because of agency action, or adversely
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`affected or aggrieved by agency action.” 5 U.S.C. § 702. The APA directs courts to “hold
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`unlawful and set aside agency action . . . found to be … arbitrary, capricious, an abuse of
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`discretion, or otherwise not in accordance with law.” Id. § 706(2)(A). Agency actions must also
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`be set aside if made “without observance of procedure required by law.” Id. § 706(2)(D).
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`FACTUAL BACKGROUND
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`Red Cliffs National Conservation Area
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`In March 2009, Congress passed and President Obama signed the Omnibus Public
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`A.
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`51.
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`Land Management Act. 123. STAT. 991. Among other provisions, the Omnibus Act created the
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`Red Cliffs NCA, which is comprised of approximately 45,000 acres of BLM-administered
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`surface acres, 2,631