                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 31 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



BACKCOUNTRY AGAINST DUMPS; et                    No. 11-56121
al.,
                                                 D.C. No. 3:10-cv-01222-BEN-
              Plaintiffs - Appellants,           BGS

  v.
                                                 MEMORANDUM *
JIM ABBOTT, California State Director of
the U.S. Bureau of Land Management; et
al.,

              Defendants - Appellees,

SAN DIEGO GAS & ELECTRIC
COMPANY,

              Intervenor-Defendant -
Appellee.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Roger T. Benitez, District Judge, Presiding

                        Argued and Submitted June 7, 2012
                              Pasadena, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: TROTT and THOMAS, Circuit Judges, and DUFFY, District Judge.**

      Backcountry Against Dumps, The Protect Our Communities Foundation,

East County Community Action Coalition, and Donna Tisdale (collectively,

“BAD”) appeal the district court’s grant of summary judgment. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm. Because the parties are

familiar with the history of this case, we need not recount it here.

                                           I

      We lack authority to consider the merits of BAD’s National Environmental

Policy Act (“NEPA”), 42 U.S.C. §§ 4321-70, and Federal Land Policy

Management Act (“FLPMA”), 43 U.S.C. §§ 1701-87, claims because BAD does

not challenge a final agency action subject to judicial review. As the Supreme

Court has explained:

      [Generally], two conditions must be satisfied for agency action to be
      final: First, the action must mark the consummation of the agency’s
      decisionmaking process-it must not be of a merely tentative or
      interlocutory nature. And second, the action must be one by which rights
      or obligations have been determined, or from which legal consequences
      will flow.

Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal quotation marks and

citations omitted). The Administrative Procedure Act (“APA”) provides that


       **
            The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.

                                          -2-
“[a]gency action made reviewable by statute and final agency action for which

there is no other adequate remedy in a court are subject to judicial review.” 5

U.S.C. § 704. The APA specifies that “[e]xcept where otherwise expressly

required by statute, agency action otherwise final is final for the purposes of this

section . . . [regardless of any reconsideration], or unless the agency otherwise

requires by rule and provides that the action meanwhile is inoperative, for an

appeal to superior agency authority.” Id.

       The Bureau of Land Management (“BLM”) is within the Department of the

Interior, whose regulations permit parties adversely affected by a BLM decision to

appeal to the Interior Board of Land Appeals (“IBLA”). See 43 C.F.R. § 4.410(a);

see also 43 C.F.R. § 2801.10(a). A BLM right-of-way decision becomes effective

upon signature and remains effective pending administrative appeal. See id.; 43

C.F.R. § 2805.13. The IBLA, in turn, is within the Interior’s Office of Hearings

and Appeals and “decides finally for the Department appeals to the head of the

Department from decisions rendered by Departmental officials relating to . . . [t]he

use and disposition of public lands and their resources.” 43 C.F.R. § 4.1(b)(2).

       The regulations further state both general and specific rules governing

Interior appeals. 43 C.F.R. § 4.1(b). “Wherever there is any conflict between one

of the general rules . . . and a special rule . . . applicable to a particular type of


                                             -3-
proceeding, the special rule will govern.” Id. A special rule provides that an IBLA

“decision . . . shall constitute final agency action and be effective upon the date of

issuance, unless the decision itself provides otherwise.” 43 C.F.R. § 4.403 (2009).

       The “[f]inality of decision” provision of the regulations provides that “[n]o

further appeal will lie in the Department from a decision of the Director or an

Appeals Board of the Office of Hearings and Appeals,” such as the IBLA. 43

C.F.R. § 4.21(d). In discussing the “[e]ffect of decision pending appeal,” the

regulations provide that “[a] decision . . . for which a stay is not granted will

become effective immediately after the Director or an Appeals Board denies or

partially denies the petition for a stay, or fails to act on the petition within the time

specified in [the regulations].” 43 C.F.R. § 4.21(a)(3) (emphasis added).

       The general rule on “[e]xhaustion of administrative remedies,” further

provides that “[n]o decision which at the time of its rendition is subject to appeal . .

. shall be considered final so as to be agency action subject to judicial review under

5 U.S.C. § 704, unless a petition for a stay of decision has been timely filed and the

decision being appealed has been made effective.” 43 C.F.R. § 4.21(c) (emphasis

added). We have observed that subsection (c) deals with exhaustion, not finality.

“If taken . . . to touch upon finality of agency action, § 4.21(c)’s requirement that a

petition for stay be timely filed would render all actions not subject to a petition for


                                            -4-
stay non-final, and thus unreviewable..” Nat’l Parks & Conservation Ass’n v.

Bureau of Land Mgmt., 606 F.3d 1058, 1064 n.3 (9th Cir. 2010), cert. denied, 131

S. Ct. 1783 (2011).

       In this case, BAD confuses efficacy as finality. Here, the BLM’s Record of

Decision (“ROD”) was effective after the stay pending administrative appeal was

denied. However, that stay denial did not transform the ROD into final agency

action. Because there was no final agency action on the administrative appeal, the

district court lacked jurisdiction to review it.

       To be sure, a ROD may constitute final agency action under certain

circumstances. Id. at 1065. For instance, “where there is no administrative appeal,

a [ROD] will become effective and final following the expiration of the appeal

period [under] 43 C.F.R. § 4.21(a)(2).” Id. However, where there is an appeal and

the IBLA grants a stay, the ROD does not become effective and is not the final

agency action. See id. Therefore, in National Parks we reviewed the IBLA’s

decision, and not the BLM’s ROD. Id. Additionally, there are circumstances in

which the stay order effectively becomes the final agency action, such as in

National Parks and in Desert Citizens Against Pollution v. Bisson, 231 F.3d 1172

(9th Cir. 2000).




                                           -5-
      However, those cases are inapposite to the present circumstances where the

stay denial was procedural, and the parties continued to litigate the administrative

appeal vigorously on the merits. Had the IBLA summarily denied the stay and

rejected the appeal without analysis, then the ROD would have been the final

agency action subject to judicial review, as in Bisson. But the IBLA reserved

judgment on the merits. The district court properly concluded that “43 C.F.R. §

4.403, when applied to the final decision of the IBLA, must rob the ROD of its

finality. Otherwise, there would be ‘two independent, and potentially conflicting,

‘final’ agency actions,’ which is impermissible.”

      The district court correctly concluded that it lacked jurisdiction over the

NEPA and FLPMA claims because there was no final agency action on the merits

of the claims.

                                          II

      To the extent that BAD’s challenges to the Eastern San Diego County

Resource Management Plan (“RMP”) are justiciable, see, e.g., Kern v. U.S. Bureau

of Land Mgmt., 284 F.3d 1062, 1070-71 (9th Cir. 2002), the claims fail on the




                                         -6-
merits.1 An “agency need not supplement an EIS every time new information

comes to light after [an] EIS is finalized.” Marsh v. Or. Natural Res. Council, 490

U.S. 360, 373 (1989). “To require otherwise would render agency decisionmaking

intractable. . . .” Id.

       Here, a supplemental EIS was not required because the BLM selected an

alternative that was “within the spectrum of alternatives” it had already analyzed

and that would not exceed the effects considered by the FEIS. Russell Country

Sportsmen v. U.S. Forest Serv., 668 F.3d 1037, 1048 (9th Cir. 2011,) cert. denied,

132 S. Ct. 2439 (2012) (internal quotation marks omitted). Contrary to BAD’s

assertion, the cumulative impacts of the project were adequately addressed in the

RMP in the context of a programmatic land use plan. Res. Ltd. v. Robertson, 35

F.3d 1300, 1306 (9th Cir. 1993). A resource management plan is not infirm

because it reserves a cumulative impacts analysis of a future plan as part of the

NEPA process for the future project. Ctr. for Envtl. Law and Policy v. U.S. Bureau

of Reclamation, 655 F.3d 1000, 1010 (9th Cir. 2011).



       1
        The district court dismissed the challenges as non-justiciable. The
government concedes that at least some of the claims may be justiciable under Or.
Natural Desert Ass’n v. U.S. Bureau of Land Mgmt., 625 F.3d 1092, 1118-19 (9th
Cir. 2010). However, we may affirm on any ground supported by the
administrative record. Nat’l Wildlife Fed’n v. U.S. Army Corps of Eng’rs, 384
F.3d 1163, 1170 (9th Cir. 2004).

                                         -7-
                                          III

      BLM’s summary dismissal of BAD’s protest did not violate FLPMA. Under

BLM’s regulations, the right to protest a proposed land use plan is triggered when

the EPA publishes notice of the availability of the final EIS for the proposed plan.

See 43 C.F.R. § 1610.5-2(a)(1). Here, the final EIS for the proposed RMP was

made available on December 7, 2007. 72 Fed. Reg. 69226 (Dec. 7, 2007). BAD

timely filed a protest in January 2008, and BLM resolved that protest on the merits

for most issues on July 25, 2008.

      Once the RMP ROD was approved in October 2008, BAD did not have the

right to file a second protest letter, because no revised or supplemental EIS

submitted to the EPA triggered another protest period. See 43 C.F.R. §

1610.5-2(a)(1). Although the regulation makes an exception for amendments not

requiring an EIS, see id., the October 2008 RMP ROD was a complete land use

plan, not just amendments to an existing plan. Thus, the 2007 proposed RMP new

release described the protest procedures. See 72 Fed. Reg. at 69226 (mentioning

protest procedures). But the letter prefacing the October 2008 decision made no

such mention–because the regulations did not provide for a protest period.

      Shortly after approving the RMP, BLM separately proposed approval of a

site-specific amendment for the transmission line. This site-specific plan


                                         -8-
amendment was subject to protest, as explained in the letter prefacing the FEIS and

the Federal Register. See 73 Fed. Reg. 63012 (Oct. 22, 2008). BAD filed a protest

letter on November 17, 2008, stating that they were attempting to “protest the

entire RMP” as well as the “entire RMP Amendment.” Because the “entire RMP”

had already been approved and was not subject to protest, the BLM construed the

letter as a challenge to the amendment alone. See 40 C.F.R.§ 1610.5-2(a)(2)(iii)

(requiring that protest contain a statement of the “part or parts of the plan or

amendment being protested”). However, the protest letter primarily consisted of

BAD’s objections to the 2008 plan. Accordingly, BLM properly dismissed the

protest for failure to satisfy the requirements of 43 C.F.R. § 1610.5-2(a)(2).

                                           IV

      In sum, we decline to reach the merits of BAD’s NEPA and FLPMA

challenges to the project ROD because BAD has not challenged a final agency

action. BAD’s challenges to the RMP fail on the merits. BLM’s dismissal of

BAD’s protest letter was neither arbitrary nor capricious.




      AFFIRMED.




                                          -9-
