KLAMATH SISKIYOU WILDLAND CENTER, ET AL.

190 IBLA 245 Decided June 5, 2017

United States Department of the Interior Office of Hearings and Appeals

Interior Board of Land Appeals 801 N. Quincy St., Suite 300

Arlington, VA 22203

703-235-3750 703-235-8349 (fax)

KLAMATH SISKIYOU WILDLANDS CENTER,

2017-166 Decided June 5, 2017

Appeal and request to stay a decision of the Field Manager for the Butte Falls Resource Area in the Medford District Office, Bureau of Land Management, denying a protest of the Eighty Acre and Clarks Dog Timber Sales. 11 & ORM05-TS-16-12.

Motion to dismiss denied; decision affirmed; petition for stay denied as moot.

1. Administrative Standing

To appeal and seek a stay of a BLM decision, an appellant must have standing under 43 C.F.R. § 4.410. This regulation requires an appellant to demonstrate that it is both a "party to a case" and "adversely affected" by the decision it seeks to appeal to the Board. The appellant bears the burden to demonstrate both of these elements of standing. I f either element is lacking, the Board must dismiss the appeal for lack of jurisdiction.

2. Administrative Procedure: Standing

When an organization seeks to establish standing, it must demonstrate either that the organization itself has a legally cognizable interest that is substantially likely to be injured by the decision, or (2) one or more of its members has a legally cognizable interest in the subject matter of the appeal, coinciding with the organization's purposes, that is substantially likely to be injured by the decision.

3. Administrative Procedure-' Burden of Proof

When a party appeals the denial of a protest, it must establish error in the protest decision. A party cannot establish error in a protest decision by asserting mere

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disagreement with the decisionmaker. When a party only reiterates the arguments already considered by the decisionmaker below, as if there were no decision addressing those arguments, this repetition constitutes mere disagreement with the decisionmaker and cannot establish error in the protest decision.

APPEARANCES: George Sexton, Ashland, Oregon, for Klamath Siskiyou Wildlands Nick Cady, Esq., Eugene, Oregon, for Cascadia Doug Heiken, Eugene, Oregon, for Oregon Teresa J. Trulock, Butte Falls Resource Area, Medford, Oregon, for the Bureau of Land Management.

OPINION BY ADMINISTRATIVE JUDGE RIECHEL

The Klamath Siskiyou Wildlands Center (KS Wild), Cascadia Wildlands, and Oregon Wild (Appellants) appeal and request a stay of the decision of the Field Manager for the Butte Falls Resource Area in the Medford District Office, Bureau of Land Management (BLM), denying their protest of the Eighty Acre and Clarks Dog Timber Sales in southwest Oregon.

BLM moved to dismiss this appeal for lack of standing. To appeal and seek a stay of a BLM decision, an appellant must demonstrate that it is both a party to a case and adversely affected by the decision it seeks to appeal to the Board. In this case, Appellants provided a declaration of an individual who is a member of each of their organizations describing how his recreational and aesthetic use and enjoyment of the affected public lands will be adversely affected by the removal of trees as authorized by the timber sales. Through this declaration, Appellants have demonstrated their standing to appeal, and we therefore deny BLM's motion to dismiss.

When parties appeal the denial of a protest, they must establish error in the protest decision. Parties cannot satisfy the requirement to establish error in a protest denial when they merely reiterate the arguments considered by the decisionmaker below as if there were no decision addressing those arguments. In this case, Appellants reiterate the arguments contained in their original protest without addressing BLM's denial of their protest, which is the decision on appeal. Under these circumstances, we summarily affirm BLM's denial of Appellants' protest and deny their petition to stay as moot.

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BACKGROUND

The Big Butte Creek Forest Management Project and the Eighty Acre and Clarks Dog Timber Sales

BLM proposed forest management actions, including timber harvests, on up to 4,200 acres of forest land and meadows in the Butte Falls Resource Area.1 BLM proposed these actions to promote forest health; contribute to the local economy by managing certain designated lands for sustainable timber production,' improve habitat for the northern spotted owl and Gentner's maintain roads and surrounding land to prevent sediment delivery to streams and improve drainage; and address increased fire risk.2 The proposed project would include forest management activities, timber harvest, and road work.3

In April 2016, BLM issued a Decision Record (DR) in which it decided to implement the proposed forest management actions.4 BLM based its decision on, among other things, the Big Butte Creek Forest Management EA, a finding of no significant impact the governing resource management plan, and public comments.5 In its DR, BLM explained that the forest management decision is subject to protest. Specifically, any protest of the Eighty Acre and Clarks Dog Timber Sales, which implement, in part, portions of the DR relating to timber harvests, must be made within 15 days of the publication of the first notice of sale, and any protest of the remaining forest management actions must be filed within 15 days of the publication date of the Notice of Decision and FONSI.6

On May 5, 2016, BLM published notices of sale for the Eighty Acre and Clarks Dog Timber Sales.7 The cutting area for the Eighty Acre sale included 749 acres of public lands, and the cutting area for the Clarks Dog sale included 386 acres of public lands.8 At the May 26, 2016, auction, Boise Cascade Wood

Big Butte Creek Forest Management Project Environmental Assessment, at 8 (June 2015) (EA).

Id. at 15-16. 20-28. Decision Record for the Butte Creek Forest Management Project at 3

(Apr. 28, 2016). Id. 9-10. Public Notice, Timber for Sale (May 5 & 12, 2016) (Administrative Record (AR)

B03). Prospectus, Lump Sum Sale, Eighty Acre at 2 (May 26, 2016) (AR B01);

Prospectus, Lump Sum Sale, Clarks Dog at 2 (May 26, 2016) (AR B02).

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Products LLC was declared the high bidder in the Eighty Acre Timber Sale, and the Murphy Company was declared the high bidder in the Clarks Dog Timber Sale.

Appellants' Protest and Appeal

Appellants filed a protest with BLM on May 16, 2016, challenging all activities involved in the Eighty Acre and Clarks Dog Timber Sales.9 Appellants alleged BLM violated the National Environmental Policy Act (NEPA) and implementing regulations10 by failing to prepare an environmental impact statement, analyze a reasonable range of alternatives, and adequately analyze cumulative effects, and BLM failed to comply with the governing land use

BLM denied Appellants' protest on March 21, 2017. In its denial, BLM clarified certain issues Appellants raised in their protest and responded to Appellants' legal and factual challenges.12 BLM concluded that Appellants had "not presented any new issues not raised in [their] earlier comments, nor ... provided any new or specific evidence that this project will cause serious harm and irreversible damage to any particular resource that would cause [BLM] to change [its] decision."13

Appellants appealed BLM's denial to the Board and asked us to stay implementation of the timber sales.14 On appeal, Appellants submitted a statement of reasons (SOR) that simply repeats their protest. BLM responded to Appellants' SOR and request for a stay by arguing that the Board should dismiss the appeal for lack of standing or, if we do not dismiss the appeal, summarily affirm BLM's decision because Appellants have not demonstrated that the decision denying their protest is in error.15

Administrative Protest of the Big Butte Forest Project DR and FONSI at 2 (May 16, 2016) (Protest).

42 §§ 4321 - 4370h (2012); 40 C.F.R. Parts 1500 - 1508; 43 C.F.R. Part 46.

Protest at 3-23. Letter from BLM to KS Wild at 1-18 (Mar. 21, 2017) (Protest Denial). Id. at 18. Notice of Appeal, Statement of Reasons, and Request for Stay of the Big Butte

Timber Sale (SOR). BLM Response to Request for Stay and Statement of Reasons at 1, 21 (BLM

Response).

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BLM'S MOTION TO DISMISS FOR LACK OF STANDING

The Regulatory Requirement to Have Standing to Appeal to the Board and Petition to Stay a Decision

To maintain an appeal and seek a stay of a BLM decision, an appellant must have standing under 43 C.F.R. § 4.410.16 This regulation requires an appellant to demonstrate that it is both a "party to a case" and "adversely affected" by the decision it seeks to appeal to the Board.17 The appellant bears the burden to demonstrate both of these elements of standing.18 I f either element is lacking, the Board must dismiss the appeal for lack of jurisdiction.19

A "party to a case" is one who has taken action that is the subject of the decision on appeal, is the object of the decision, or has otherwise participated in the process leading to the decision.20 For example, one who commented on an EA or filed a protest to a proposed action is a party to a case.21 A party to a case is adversely affected by a decision "when that party has a legally cognizable interest, and the decision on appeal has caused or is substantially likely to cause injury to that interest."22 A legally cognizable interest can include cultural, recreational, or aesthetic use and enjoyment of the affected public lands.23

[2] In order to demonstrate that a party is adversely affected, the party must make colorable allegations of an adverse effect, supported by specific facts, sufficient to establish a causal relationship between the approved action and the injury alleged.24 When an organization seeks to establish standing, it must demonstrate either that the organization itself has a legally cognizable interest

See also 43 C.F.R. § 4.21(a)(2) ("a petition for a stay may be filed only by a party who may properly maintain an appeal").

Id. § 4.410(a). Cascadia Wildlands, 188 IBLA 7, 9 (2016); Western Watersheds Project (WWP),

185 IBLA 293, 298 (2015). Cascadia Wildlands, 188 IBLA at 9; WWP, 185 IBLA at 298; WildEarth

Guardians, 183 IBLA 165, 170 (2013). 43 C.F.R. § Id. Id. § 4.410(d). Cascadia Wildlands, 188 IBLA at 9-10; WWP v. BLM, 182 IBLA 1, 7 (2012). WWP, 189 IBLA 310, 313 (2017); The Fund for Animals, Inc., 163 IBLA 172, 176

(2004) (quoting Fred E. Payne, 159 IBLA 69, 73 (2003)); Colorado Open Space Council, 109 IBLA 274, 280 (1989).

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that is substantially likely to be injured by the decision,25 or (2) one or more of its members has a legally cognizable interest in the subject matter of the appeal, coinciding with the organization's purposes, that is substantially likely to be injured by the decision.26 In establishing that a decision is substantially likely to injure a legally cognizable interest, an appellant need not prove that an injury is certain, but the appellant must show the threat of injury and its effect on the appellant are more than hypothetical.27

Appellants Are Parties to the Case and Have Shown that the Timber Sales Are Substantially Likely to Injure a Legally Cognizable Interest

Appellants are non-profit organizations, whose missions include protection of the ecological and biological integrity of forests, promotion of responsible relationships with the ecosystems in their bioregion, and protection and restoration of Oregon's forest lands.28 These Appellants are parties to the case because they commented on BLM's EA and protested the proposed timber sales.29

Standing therefore depends on whether Appellants have demonstrated that they are adversely affected by BLM's decision to conduct the timber sales.

In their SOR, Appellants affirmatively assert that they have standing to appeal from BLM's denial of their protest because their members and staff use and enjoy the public lands that will be subject to the timber sales.30 In support of their claim of standing, Appellants provided the declaration of George Sexton, who is a KS Wild employee and a member of all three Appellant organizations.31 Mr. Sexton declares that he takes photographs, hikes, and camps in the mature forests in the Butte Falls Resource Area of the Medford BLM District, including the forests in the timber sale units, and plans to continue to do so.32 He states that the proposed logging and road construction will remove trees and damage the forest character that he enjoys.33

Board of County Commissioners of Pitkin County, Colorado (Pitkin County), 186 IBLA 288, 308-10 (2015).

Cascadia Wildlands, 188 IBLA at 10; WWP, 185 IBLA at 298-99; The Coalition of Concerned National Park 165 IBLA 79, 86 (2005).

Cascadia Wildlands, 188 IBLA at 11 (quoting Native Ecosystems Council, 185 IBLA 268, 273 (2015)).

3-4. 43 C.F.R. § 4.410(b). 3-5. Sexton Declaration, f 1. Id. f f 3, 4, 6. Id. f f 3, 5.

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Mr. Sexton's recreational and aesthetic use and enjoyment of the affected public lands satisfies the requirement that a party have a legally cognizable interest that coincides with Appellants' purposes. Furthermore, Mr. Sexton has made colorable allegations of an adverse effect on his interests that would be caused by implementation of the timber sales. For these reasons, Mr. Sexton's declaration, on behalf of each of the Appellants, shows each Appellant organization has a member with a legally cognizable interest that is substantially likely to be injured by the timber sales. Appellants have therefore established their standing to appeal, and we deny BLM's motion to dismiss.

THE MERITS OF APPELLANTS' APPEAL

Appellants' Burden of Proof on Appeal

[3] When a party appeals the denial of a protest, it must establish error in the protest decision.34 A party cannot establish error in a protest decision by asserting mere disagreement with the decisionmaker.35 When a party only reiterates the arguments already considered by the decisionmaker below, as if there were no decision addressing those arguments, this repetition constitutes mere disagreement with the decisionmaker and cannot establish error in the protest decision.36 For example, we have explained that "when appellants have filed a protest based on alleged NEPA violations, but BLM thoroughly discussed and answered the protest, and the appeal to the Board does not analyze how BLM erred in its response to the protest, the Board will summarily affirm the decision being appealed."37

Appellants Have Not Established Error in the Protest Decision

In this appeal, Appellants submitted an SOR that, in substance, repeats their protest verbatim. There are only a few, non-substantive differences between the language in the protest and the language in the SOR.38 Nowhere in the SOR do

In re North Trail Timber Sale, 169 IBLA 258, 262 (2006); Bark (In re Rusty Saw Timber Sale), 167 IBLA 48, 76-77 (2005). In re North Trail Timber Sale, 169 IBLA at 261. See Klamath-Siskiyou Wildlands Center, 187 IBLA 287, 288 (2016); In re Mill

Creek Salvage Timber Sale, 121 IBLA 360, 362 (1991). Klamath-Siskiyou Wildlands Center, 187 IBLA at 288-89. See, e.g., SOR at 11 (inserting "and IBLA Appeal" in the sentence "[T]his

Administrative Protest and IBLA Appeal reiterate some of the deficiencies in the agency's NEPA analysis that were previously identified in our EA comments"),

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Appellants acknowledge the content of BLM's protest denial or attempt to show error in the facts or law BLM recited in the denial. Appellants' SOR does not add any arguments or evidence to what they provided in their protest, which BLM thoroughly considered when it denied their protest. Consequently, their repetition of the same arguments amounts only to a disagreement with BLM, which is not sufficient to carry their burden on appeal. Under these circumstances, where "BLM has provided a comprehensive decision fully addressing each of the allegations contained in the protest," and Appellants have not "attempted to show any error in the decision,"39 it is appropriate to affirm BLM's protest denial in a summary fashion.

CONCLUSION

Accordingly, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior,40 the Board denies BLM's motion to dismiss for standing, affirms BLM's protest decision, and denies Appellants' petition for stay as moot.

I concur:

16 (replacing the word "presents" with "reiterates"), 17 (replacing the word "proposing" with "authorizing").

In re Mill Creek Salvage Timber Sale, 121 IBLA at 362. 43 C.F.R. § 4.1.

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