Montana Land Must Be Scoured for Artifacts

(CN) - Uncle Sam must more thoroughly try to find historic and cultural artifacts on the roads and airstrips of the Upper Missouri River Breaks National Monument, the 9th Circuit ruled Wednesday.

The federal appeals court in Seattle handed a partial win to the Montana Wilderness Association, the Wilderness Society and other groups challenging the Bureau of Land Management's resource management plan for the approximately 375,000-acre monument in central Montana's wild country.

The environmental groups have claimed in two separate lawsuits that the plan violates various federal environmental laws by allowing too many roads and roadside camping, failing to protect wildlife habitat and a sense of wilderness serenity, and neglecting historical sites and artifacts, among other things.

U.S. District Judge Sam Haddon granted the government summary judgment on all of the group's claims, and a divided appellate panel mostly affirmed on Wednesday. The three-judge panel did, however, find that the management plan violates the National Historic Preservation Act. It ordered the BLM to complete an intensive "Class III" survey of the monument's "roads, ways and airstrips," hunting for items of historical and cultural import.

The wild region has a long history of human presence, from Plains Indians to the Lewis and Clark expedition to the homesteaders of the 19th Century. It's also an ecological gem, home to elk, pronghorn, bighorn sheep and an increasingly rare cottonwood gallery forest.

The appellate panel rejected the group's claims that the plan violates the National Environmental Policy Act and the Federal Land Policy and Management Act, finding that the bureau had done enough to protect the land's flora and fauna.

It also noted, however, that a mere 8 percent of the monument had been extensively studied for historical sites, and that much of the area had not been studied at all since the 1970s. Moreover, a private company that the bureau hired to review past projects on the monument specifically recommended a Class III survey, the panel found.

"In light of these considerations, we hold that BLM failed to make a reasonable effort to identify historical and cultural resources," Judge Raymond Fisher wrote for the panel, using the bureau's abbreviated name. "Consistent with BLM's own policy documents, BLM is required to conduct Class III inventories for roads, ways and airstrips that have not been surveyed previously or were surveyed decades ago."

The panel sent the case back to the U.S. District Court "with instructions to enter judgment in favor of the plaintiffs on the National Historic Preservation Act claim and to enter an appropriate order requiring BLM to conduct Class III surveys with respect to roads, ways and airstrips that have not been subject to recent Class III surveys."

In a partial dissent, Judge Ronald Gould argued against the bureau's definition of "road." There are about 24 miles of what the BLM calls open "ways" within the Monument's six Wilderness Study Areas, which are supposed to be roadless. The environmental groups said that these "ways" are really "roads," and therefore illegal.

The government argued, and the majority agreed, that the two-track roads can stay open within the Wilderness Study Areas because they would be maintained without "mechanical means" and solely for "the passage of vehicles."

Gould said the bureau's view violates the terms under which the President Bill Clinton established the monument in 2001.

"The RMP does not explain why the selected definition of 'road' for the transportation plan and the off-road travel ban serves the purpose of protecting Monument objects," Gould wrote, abbreviating resource management plan. "That is enough to invalidate the BLM's process on this point. But if there were any doubt, it should be dispelled by the common-sense understanding that vehicle travel on the primitive two-track routes can only impair the objects that the proclamation sought to protect. To define roads so broadly is to strip the off-road travel ban of its significance for the monument."

The 9th Circuit had also mostly favored the government last month when it ruled on the environmentalists' related complaint about grazing at the monument.

Though the court said that the bureau had not violated environmental law by allowing grazing at the monument, it directed the agency to take a closer look at how grazing will affect a portion of the scenic land.

The environmentalists claim that the bureau ignored the detrimental impacts of livestock grazing on some of the monument's protected features, including riparian areas, cottonwood gallery forest ecosystems and sage-grouse habitat.

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