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)

December 19, 2019

IBLA 2020-31

NATIVE ECOSYSTEMS COUNCIL, ET AL.

DOI-BLM-B070-2013-0019-EA

Vegetation Treatment

Motion to Dismiss Granted; Petition for Stay Denied as Moot

ORDER

Native Ecosystems Council (NEC) and the Alliance for the Wild Rockies (AWR) (collectively, Appellants) appeal and petition to stay the effect of a September 23, 2019, Decision Record (2019 DR) issued by the Butte Field Office (Montana), Bureau of Land Management (BLM). The DR authorizes vegetation and riparian treatments for the Iron Mask Planning Area (Iron Mask PA). BLM has filed a motion to dismiss the appeal. As explained below, we grant BLM's motion, dismiss the appeal, and deny Appellants' petition for stay as moot.

SUMMARY

Under the Board's regulations, only an individual eligible to practice before the Department may file an appeal. When an organization seeks to appeal a decision, its notice of appeal must be filed by a lawyer, officer, or full-time employee of that organization. Here, Sara Jane Johnson, NEC's Director, signed the appeal on behalf of both NEC and AWR. While Ms. Johnson is eligible to represent NEC before the Board because she is NEC's Director, she has not shown that she is an attorney or an officer or employee of AWR. Because Ms. Johnson is not eligible to represent AWR, we dismiss AWR's appeal.

We also dismiss NEC's appeal because it does not demonstrate that it has standing. When an organization seeks to establish standing through one of its members, it must show a causal relationship between the challenged action and an injury to the member's legally cognizable interest. NEC seeks to establish standing through Ms. Johnson and provides a declaration in which she states that she has been to the

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BLM-managed portion of the Iron Mask PA once and to the Iron Mask PA on six other occasions. But Ms. Johnson does not specify that she has visited the area where the vegetation and riparian treatments authorized by BLM's decision will occur, identify harm to any legally cognizable interest in the lands or their resources, or state that she will return to the Iron Mask PA in the future. NEC therefore does not meet its burden to show that a member has a legally cognizable interest that will be injured by BLM's decision, and NEC does not have standing to appeal to the Board.

BACKGROUND

The Iron Mask PA is located in Montana on the east side of the Elkhorn Mountains.' It includes Federal lands managed by BLM, the U.S. Forest Service, and the Bureau of Reclamation, as well as State, local, and private lands.' BLM manages 19 parcels of land totaling 26,235 acres within the Iron Mask PA.3

In 2015, BLM prepared an EA for the Iron Mask PA to, among other things, consider the impacts of vegetation and riparian treatments within the PA to improve land health and enhance wildlife habitat.' As BLM explained in the EA, vegetation communities within the area have been altered from pre-settlement conditions by a combination of human activities, including long-term fire suppression and livestock grazing.' These alterations have resulted in colonization by conifers, which has made the affected areas more susceptible to damage from wildland fires, insect infestations, and weed species establishment.' In addition, riparian areas have been impacted by historic mining, erosion, and unnatural succession.'

On July 1, 2015, BLM issued a DR authorizing vegetation and riparian treatments on up to 5397 upland acres over several years, including prescribed fire and hand or mechanical treatments to reduce conifers and restore grass/shrub habitat.' Appellants

'Administrative Record (AR) Folder 3, Iron Mask Planning Area Environmental Assessment, DOI-BLM-MT-B070-2013-0019-EA at 3 (July 1, 2015) [hereinafter 2015 EA] . ' Id. ' Id. at 48. 4 AR Folder 3, Decision Record for Vegetation and Riparian Treatments, Iron Mask Planning Area Environmental Assessment at unpaginated (unp.) 1 (July 1, 2015) [hereinafter 2015 DR]; see also 2015 EA, supra note 1 at 1, 2-6. ' 2015 EA, supra note 1 at 5. 6 Id. ' Id. ' 2015 DR, supra note 4 at unp. 1.

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appealed the DR, but we dismissed their appeal because NEC failed to demonstrate that it had standing and AWR did not timely file its appeal.'

In 2018 Appellants filed a complaint in the U.S. District Court for the District of Montana alleging that in issuing the 2015 DR, BLM violated the National Environmental Policy Act (NEPA) and Federal Land Policy and Management Act (FLPMA) . 10 The Court granted in part and denied in part the parties' cross motions for summary judgment, finding that BLM violated NEPA by failing to perform a cumulative impact analysis in the EA 11 The Court remanded the case to BLM for preparation of a supplemental EA and enjoined BLM from implementing its DR until that analysis was completed. 12

In accordance with the Court's order, BLM prepared a supplemental EA (SEA) in which it explained that approximately one-third of the vegetation treatments authorized by the 2015 DR had already been completed, and BLM now proposed to "continue to complete the vegetation treatments" authorized by that DR. 13 On September 20, 2019, BLM issued the final SEA,14 and on September 23, 2019, BLM issued a DR approving completion of the vegetation treatments approved in 2015 "to reduce conifer encroachment and restore grassland/shrubland habitat" on the remaining acres to be treated (approximately 3558 acres)."

Appellants appeal and petition for a stay of the 2019 DR, arguing that the decision violates NEPA and FLPMA.16 BLM opposes a stay and has also moved to dismiss Appellants' appeal, arguing that the Board should (1) dismiss AWR as a party because Sara Jane Johnson, the Director of NEC, cannot represent it, and (2) dismiss NEC

' Order, Native Ecosystems Council, IBLA 2015-230, Motion to Dismiss Granted; Appeal Dismissed; Petition for Stay Denied as Moot (Sept. 22, 2015). " See NEC & AWR v. Raby, 1:18-cv-00055 (Dist. Mont.) (ECF Doc. No. 1) (filed Mar. 23, 2018) (referencing National Environmental Policy Act, 42 U.S.C. §§ 4321-4347 (2012); Federal Land Policy and Management Act, 43 U.S.C. §§ 1701-1787 (2012)). 11 See NEC & AWR v. Judice, 1:18-cv-00055 (Dist. Mont.) (ECF Doc. No. 82) at 21 (filed Mar. 12, 2019). 12 Id. at 24. 13 AR Folder 6, Iron Mask Planning Area Preliminary Supplemental Environmental Assessment at 15 (June 27, 2019). 14 AR Folder 18, Iron Mask Planning Area Supplemental Environmental Assessment (Sept. 20, 2019). " AR Folder 19, Decision Record for Upland and Riparian Vegetation Treatments, Iron Mask Planning Area, DOI-BLM-B070-2013-0019-EA (Supplemented) at 1 (Sept. 23, 2019). 16 Notice of Appeal and Petition for Stay (filed Nov. 5, 2019).

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because it lacks standing.17 Appellants have not filed a response to BLM's motion and the time to do so has passed.18

DISCUSSION

1. We Dismiss AWR's Appeal Because Ms. Johnson Does Not Show She is Eligible to Practice Before the Department on AWR's Behalf

The Department's regulations require a notice of appeal to be filed by a person who is eligible to practice before the Department.19 The regulation at 43 C.F.R. § 1.3 specifies that an individual is eligible to practice before the Department if that individual has been formally admitted to practice before the Department under any prior regulations; is a barred attorney; or is appearing on her own behalf or on behalf of, for example, a family member or an association for which she is an officer or a full-time employee.20 The Board will dismiss an appeal if it is filed by a person who is not eligible." The burden to show eligibility to practice before the Board rests upon the person purporting to represent an appellant by filing a notice of appeal."

Here, the Notice of Appeal (NOA) and Petition for Stay each name NEC and AWR as appellants. The NOA specifically identifies Ms. Johnson, the Director for NEC, and Mike Garrity, the Director for AWR, as appellants. Both documents are signed by Ms. Johnson; above her signature are the words "Signed for the Appellants."23 Neither Mr. Garrity nor any other representative of AWR signed the NOA or Petition for Stay. Even if Ms. Johnson intended only to sign on behalf of Mr. Garrity but not to represent AWR, this still does not satisfy the requirement of 43 C.F.R. § 1.3.24

While Ms. Johnson, as an official of NEC, is eligible to represent NEC in its appeal, we find no evidence that she is eligible to represent AWR. There is nothing in the record

17 BLM Response to Petition for Stay and Motion to Dismiss (Motion) at 7-8, 10-11 (filed Nov. 15, 2019) . 18 43 C.F.R. § 4.407(b) (providing that a party has fifteen days to respond to a motion). 19 Id. § 1.3. 2

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Id. § 1.3 (b) . 21 Oregon Chapter Sierra Club, 176 IBLA 336, 345 (2009). 22 Steven Cyros, 190 IBLA 46, 47 (2017). 23 Notice of Appeal at 1 ("Signed for Appellants"); Petition for Stay at 3 ("Signed for the Appellants") . 24 See Native Ecosystems Council, 185 IBLA 268, 272 (2015) (holding that 43 C.F.R. § 1.3 "does not authorize practice by an `agent' or an individual performing for a client other than as an attorney") .

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showing that Ms. Johnson is a lawyer, officer, or full-time employee of AWR, or that she falls within another category of eligible representatives under 43 C.F.R. § 1.3. She is therefore not eligible to represent AWR, and we dismiss AWR as a party to the appeal.

2. We Dismiss NEC's Appeal Because It Has Not Demonstrated Standing to Pursue Its Appeal

To appeal a BLM decision, an appellant must have standing under 43 C.F.R. § 4.410. To have standing, an appellant must be "a party to a case" and "adversely affected" by the decision it seeks to appeal.25 An appellant must demonstrate both elements of standing to proceed; if either element is lacking, the Board must dismiss the appeal for lack of jurisdiction.26

A party to a case "is one who has taken action that is the subject of the decision on appeal, is the object of that decision, or has otherwise participated in the process leading to the decision under appeal, e.g.... by commenting on an environmental document. ...i 27 Because NEC submitted comments to BLM on the preliminary SEA, it satisfies the party to a case requirement.28

The second element of standing, adverse effect, is met when the appellant has a legally cognizable interest, and the decision on appeal has caused or is substantially likely to cause injury to that interest.29 When an organization appeals a BLM decision and seeks to establish standing through one of its members, it must demonstrate that the member "has a legally cognizable interest in the subject matter of the appeal, coinciding with the organization's purposes," that has caused or is substantially likely to cause injury to that interest.30 The appellant has the burden "to make colorable allegations of an adverse effect, supported by specific facts set forth in an affidavit, declaration, or other statement of an affected individual that are sufficient to establish a causal relationship between the approved action and the injury alleged.""

Cultural, recreational, or aesthetic use and enjoyment of public lands by a member or staff person of an organization can give rise to a legally cognizable interest

2s 43 C.F.R. § 4.410. 26 WildLands Defense, 192 IBLA 209, 214 (2018); Western Watersheds Project, 192 IBLA 72, 76 (2017); Cascadia Wildlands, 188 IBLA 7, 9 (2016). 27 43 C.F.R. § 4.410(b). 28 AR Folder 10, Letter to Scott Haight, BLM, from NEC (July 29, 2019). 29 43 C.F.R. § 4.410(d). 30 Board of County Commissioners of Pitkin County, Colorado, 186.IBLA 288, 297 (2015). 31 Id.

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which may support the organization's standing to appeal.32 But "allegations of limited use ... and indefinite prior and future use are [not] sufficient to demonstrate ... a legally cognizable interest ....i 33 Standing must be based on more than a general allegation of enjoyment of activities on the land in the general vicinity of the area subject to BLM's decision.34 The individual must specify dates and location of such use and future intentions regarding such use, and show a nexus between the use of the land and the challenged action in BLM's decision.35 We have explained that the information provided by a member of an organization in support of standing should "provide as much specific evidence as possible about what interests are allegedly injured and what the connections are between those interests and the decision it seeks to appeal."36

NEC asserts standing based on injury to Ms. Johnson, and attached to its NOA a declaration by Ms. Johnson in which she states that she is "particularly interested" in the Elkhorn Mountains because "it is a unique wildlife management area" and because the "mountain range is only 30 miles from [her] home ....i 37 She specifies that she visited the "northern portion" of BLM-managed lands in the Iron Mask PA on May 18, 2015, and since then has been to the Iron Mask PA six other times, between April 2016 and October 2019.38 The remainder of her declaration primarily consists of arguments about BLM's NEPA compliance.

32 See Klamath-Siskiyou Wildlands Center, 190 IBLA 295, 300 (2017); Cascadia Wildlands, 188 IBLA at 9-10. 33 Western Watersheds Project, 185 IBLA 293, 300 (2015) (emphasis omitted). 34 See Lujan v. Defenders of Wildlife, 504 U.S. 555, 565-66 (1992) ("[A] plaintiff claiming injury from environmental damage must use the area affected by the challenged activity and not an area roughly `in the vicinity' of it." (quoting Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 887-889 (1990))); see also Western Watersheds Project v. Bureau of Land Management, 182 IBLA 1, 7 (2012) (explaining how the Board has been guided by Federal court decisions discussing standing). " Wildlands Defense, 192 IBLA at 218 (stating that standing is not established "when an officer of an organization stated that he had visited the project area generally, but did not allege that he had visited any `specific areas' where the alleged harmful actions would take place") . 36 Western Watersheds Project, 192 IBLA 7 at 78-79 (quoting The Coalition of Concerned National Park [Service] Retirees, 165 IBLA 79, 88 (2005)). 3' Declaration of Dr. Sara Jane Johnson at' 2 (filed Nov. 5, 2019). 31 Id. (identifying visits on "12/1/16, 4/20/16, 10/6/17, 8/18/18, 1/26/19, and 10/13/19"); see also Standing Declaration for Native Ecosystems Council Director Sara Johnson (filed Nov. 5, 2019) .

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Although Ms. Johnson states that she has been to the Iron Mask PA seven times, she specifies that only one of those visits was to BLM-managed lands within the area and does not identify whether this visit, or any other visit, was to an area where the vegetation and riparian treatments will occur or that is likely to be affected by BLM's decision. Nor has she stated how BLM's actions will harm her enjoyment or recreational interests in those lands, or made any statement indicating a future intent to visit the land subject to BLM's decision (or any BLM land in the Iron Mask PA). Her statements therefore constitute merely an interest in the Iron Mask PA and are insufficient to show that she has a legally cognizable interest that is or is substantially likely to be injured by BLM's decision.39 We therefore conclude that NEC has not shown that it has standing to appeal the 2019 DR.

CONCLUSION

We conclude that Ms. Johnson has not shown that she is eligible to represent AWR and NEC has not demonstrated it has standing to pursue its appeal. Accordingly, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior,40 we grant BLM's motion to dismiss, dismiss the appeal, and deny Appellants' petition for stay as moot.

I concur:

39 See Western Watersheds Project, 192 IBLA at 78; Cascadia Wildlands, 188 IBLA at 11. 40 43 C.F.R. § 4.1.

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