Detailed Review — SUWA v DOI Settlement — Part 1 – The Agreement

Detailed Review — SUWA v DOI Settlement — Part 1 – The Agreement

(Click here for a copy of the proposed settlement)

If the pending settlement is approved by the courts, SUWA and the other environmental litigants agree to dismiss with prejudice their original complaint, amended complaints and supplemental complaint in their entirety. (Paragraphs 32 – 36 on Pages 24 – 27.) The process is a bit complicated partly because the district court decisions are being appealed in the 10th Circuit Court of Appeals. The settlement states that the parties supporting the settlement will ask the 10th Circuit Court of Appeals to stay proceedings on the appeal(s) and wait for action from the district court regarding the pending settlement.

UPDATE! On April 26, 2017 the federal district court in Utah granted an “indicative ruling” approving the proposed settlement. The next step is for the Department of the Interior to withdraw their appeal from the 10th Circuit. If granted, the district court will have complete jurisdiction over the case again and can formally approve the settlement.

In exchange for agreeing to dismiss the lawsuit, new travel plans will be completed for approximately half of the lands within the Richfield, Vernal, Price, Moab and Kanab field offices. Instead of facilitating planning that would address the shortcomings identified in the district court’s ruling, the pending settlement requires the BLM to completely revise its travel plans by certain deadlines.

In addition, BLM must complete Class III cultural surveys on all routes that are within certain ACEC’s (Areas of Critical Environmental Concern) that were established specifically to protect archaeological and cultural resources. These ACECs are located in the Vernal, Price, Moab and Kanab field offices.

The pending settlement also requires the BLM to evaluate certain proposed new ACEC’s in the Vernal and Kanab Field Offices. These ACEC’s are apparently being proposed to protect “special status species” and “visual resources.” During the ACEC evaluation, BLM will be required to consider “new information” for important resource values (such as wilderness characteristics, archaeological resources and, apparently, any other resources SUWA and the environmental litigants submit). The pending settlement would appear to require BLM establish temporary management prescriptions to protect those resource values. (Paragraphs 25-28 on pages 20, 21.) The pending settlement also requires the BLM to revise and enhance its rules for analyzing impacts related to oil and gas development. (Paragraphs 29-31 on pages 22-24.) The ACEC and oil and gas provisions of the pending settlement are not addressed in this review.

The travel planning process
The pending settlement mandates that a very specific process be followed when formulating the new travel plans. (Paragraphs 15-24 on pages 7-19.) Many of the process requirements mirror existing BLM planning guidance, however, the settlement also adds extensive additional requirements.

Some of the additional requirements seem appropriate insofar as they address the shortcomings identified by the district court’s decision. However, the settlement includes other requirements that seem unrelated to the court’s original ruling, such as inventory and management for wilderness characteristics instead of “wilderness suitability.”
Importantly, the pending settlement mandates the use of a revised version of an Instruction Memorandum (IM) designed to give individual field offices specific direction regarding how they should develop a travel plan. The existing IM was finalized in 2012 and expired in 2013. According to the BLM, the revision has not even started because the agency’s intent is to incorporate “important aspects” of the pending settlement as well as a draft programmatic agreement addressing compliance with the National Historic Preservation Act. The BLM says if the settlement is approved it intends to finalize the new IM by 9/30/2017.

Check back with 5MOH for Part 2 of our detailed review of this important settlement.