United States Department of the Interior OFFICE OF H E A R I N G S A N D APPEALS

Board Land Appeals 801 N . Quincy Street, Suite 300

Arlington, Virginia 22203

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

March 10, 2010

2010-16 CACA 49984

ROBERT F. HUNTSMAN Desert Land Entry

Decision Affirmed

ORDER

F. Huntsman has appealed from and petitioned for a stay of a September 24, 2009, decision issued by the California State Office, Bureau of Land Management (BLM), rejecting his Desert Land Entry (DLE) application (CACA 49984), filed pursuant to the Desert Land Act, 43 §§ 321-339 (2006). BLM concluded that the applicable land use plan precluded agricultural use of the land, and that a DLE is a form of agricultural use.

The case record shows that management of the land in question is governed by the 1980 California Desert Conservation Area Plan (CDCA Plan), as amended, and that BLM is required by that plan to manage those lands for limited use, which includes restricting agricultural use. For that reason, we affirm BLM's decision and deny the petition for stay as moot.

Huntsman originally filed his application with BLM in March 2008, seeking to acquire 160 acres of land in San Bernardino County, California, described as the

sec. 26, T. 6 N., R. 1 W., San Bernardino Meridian. BLM returned the application because Huntsman failed to pay an application service fee and 25 cents per acre for land sought, both required by regulation. Huntsman executed a new application on May 30, 2008, and submitted the fees to BLM. In the application, he stated that he intended to use the land to cultivate watermelon and honeydew melon, plant apple, peach, olive, and almond trees, as well as Jeffrey Pine and Sugar Pine trees, the latter two to be used as windscreens and for the production of pine nuts and lumber. He proposed to drill water wells following county approval and to utilize solar pumps to produce water for drip irrigation.

Background

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In his statement of reasons for appeal (SOR), appellant raised a number of arguments. He expanded on those arguments in a supplement to his SOR (Supp. SOR), as well as in a response to BLM's opposition to his petition for a stay and a response to BLM's Answer to his SOR (Response to Answer). Briefly summarized, appellant argues that BLM improperly based rejection of his application on the CDCA Plan because that plan is an administrative document and, as such, it is subject to contrary requirements of statutes and regulations governing his DLE application. See SOR at 2, 10, 12; Supp. SOR at 7, 8; Response to Answer at 2. His arguments address and rely upon a number of provisions of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. §§ 1701-1782 (2006), the regulations at 43 C.F.R. Subpart 2091 governing the segregation and opening of lands, various regulations pertaining to land in 43 C.F.R. Part 2400, and the desert land entry regulations in 43 C.F.R. Part

In particular, appellant claims that the Historical Index (HI) for the township shows that the land he applied for was subject to a homestead entry in 1913, which was released the same year apparently in favor of a DLE (cancelled in 1916)' and that another homestead entry was made in 1930 (cancelled in 1936). SOR at 5. He argues that this shows that the land was "dedicated to specific uses," i.e., agricultural use, as that phrase is used in 43 § 1732(a) (2006), that the CDCA Plan could not change the classification of the land as available for agricultural entry, and that Congress recognized in 43 U.S.C. § 1713(b) (2006), that desert land was to be conveyed under "existing law," which he understands to affirmatively require that desert land that is agriculture in character be conveyed under the Desert Land Act. SOR at 5, 7, 16; Supp. SOR at 4-5; Response to Answer at 3-4.

The CDCA

In Congress required the Department, with certain exceptions, to inventory any land and interest in land owned by the United States and administered by the Secretary of the Interior through BLM and to develop land use plans for them 43 U.S.C. §§ 1702(e), 1711(a), 1712(a) (2006). In addition, Congress designated 25 million acres of southeastern California, including more than 12 million acres of land administered by BLM, as the CDCA. See 43 U.S.C. § (2006); American Motorcyclist Association v. Watt, 714 F.2d 962, 964 (9th Cir. 1983). Congress directed the Secretary of the Interior to "prepare and implement a comprehensive, long-range plan for the management, use, development, and protection of the public lands within" the CDCA. 43 U.S.C. § 1781(d) (2006). The Secretary approved the CDCA Plan in December 1980. See CDCA Plan (1980) at 162.

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Except for approximately 300,000 acres in small and scattered parcels, all BLM managed lands in the CDCA were divided into four "multiple-use classes," including Class L, designated as limited use to protect sensitive, natural, scenic, ecological, and cultural resource values. CDCA Plan (1980) at 13. The class guidelines for Class L lands provided that uses (excluding livestock grazing) are not allowed."1 at 15, Table 1.

The record includes a copy of the Master Title Plat for T. 6 N., R. 1 W., San Bernardino Meridian, dated February 22, 2004, which indicates that all of the township is within the CDCA, a fact also noted on the HI. In addition, the record includes Map 2-2 from the titled "Alternative A Multiple Use Classes."

On appeal, BLM submitted the November 16, 2009, declaration of Dianna Storey, a BLM California State Office realty specialist, and two attachments, an additional copy of Map 2-2 (Attachment A), which she identifies as "the most recent land classification map for the CDCA" (Storey Declaration at 3), and a "Huntsman DLE Map" (Attachment B), which she states was prepared by her office. Attachment B, she states, was prepared by overlaying the location of the land sought by Huntsman on Attachment A, in order to show the CDCA Plan multiple-use classes for the 36 sections of T. 6 N., R. 1 W. The NWV4, sec. 26 is designated as "BLM Limited" on Attachment B. Thus, as provided by the CDCA Plan guidelines, agricultural use of the land is limited to livestock grazing. CDCA Plan (1980) at 15

1.

The essence of appellant's arguments on appeal are a challenge to the CDCA Plan multiple-use class for the land in question. The Board has no jurisdiction to entertain such a challenge. In Max Wilson, 131 IBLA 306 (1994), in which we affirmed a BLM decision returning a DLE application for lands within the CDCA because those lands were designated as Class L, we stated that the Board "does not

BLM amended the Plan on a number of occasions, incorporating those amendments in an updated version of the Plan published in March 1999. None of the amendments affected the agricultural use prohibition for Class L lands. In March 2006, the BLM California State Director approved the West Mojave Plan, which is a habitat conservation plan and an amendment to the CDCA Plan prepared through the collaborative effort of cities, counties, state and federal agencies having jurisdiction over lands within the planning area. Final Environmental Impact Report and Statement for the West Mojave Plan at That plan did not change the agricultural prohibition for the lands in question.

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have jurisdiction to substantively review decisions to approve or amend resource management plans, including land use plans as described by FLPMA, which 'are designed to guide and control future management Max Wilson, IBLA at 308, quoting 43 C.F.R. § 1601.0-2. The reason is that the adoption of such a plan establishes general management policy rather than implementing a decision that affects a specific parcel of land, and by regulation approval of a plan is subject only to protest to the Director of BLM, whose decision is final for the Department. 43 C.F.R. § 1610.5-2; see Max Wilson, 131 IBLA at 309, and cases cited. Thus, the Board does not have jurisdiction to determine whether the CDCA Plan properly designated the land described in appellant's DLE application as multiple-use Class L.

Appellant may be correct that the land he applied for was at one time available for homestead or desert land entry. However, the entries he references, as shown on the HI, were made prior to the issuance of Executive Orders (E.O.) in 1934 and 1935 by President Franklin D. Roosevelt, which withdrew virtually "[a]ll vacant public lands, except those in Alaska, with certain exceptions, . . . from entry, selection, and location under the non-mineral land laws." 43 C.F.R. § Congress provided in section 7 of the Taylor Grazing Act, 43 U.S.C. § 315f (2006), that those lands would not be "subject to disposition, settlement, or occupation until after the same have been classified and opened to entry." 43 U.S.C. § 315f (2006).

Appellant believes section 7 of the Taylor Grazing Act is inapplicable because, in his opinion, that section is limited to lands within grazing districts and there are no grazing districts in the CDCA, which is managed by the BLM Barstow Field Office. No such limitation exists. Section 7 authorized the Secretary, "in his discretion, to examine and classify any lands withdrawn or reserved by Executive order of November 26, 1934 (numbered 6910), and amendments thereto, and Executive order of February 5, 1935 (numbered 6964), or within a grazing district." 43 U.S.C. § 315f (2006) E.O. 6910 withdrew "all of the vacant, unreserved and unappropriated public lands in" California.2 54 L.D. 539 (1934).

Regarding classification of the land, appellant points out that block of his application states:

If the lands described in this application have not been classified as suitable for desert land entry pursuant to the provisions of Section 7, of

We note that the HI shows that in 1970 portions of T. 6 N., R. 1 W. were segregated from appropriation under the agricultural land laws, including sec 26 35 Fed. Reg. 6193 (Apr. 16, 1970).

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the Taylor Grazing Act of June 28, 1934, as amended, (43 U.S.C. § 315F) [sic] and the requirements of the regulations in 43 CFR Part 2400, please consider the application as a petition for such classification.

Response to Answer at 6. Although appellant incorrectly claims that the land he applied for remains classified as available for DLE, the quoted provision suggests that BLM should consider whether to reclassify the land. See 43 C.F.R. § 2450.2. Such is not the case. The Board addressed that provision in Dona Jeanette Ong (Ong I), 149 IBLA 281, 285 (1999), where we said, Max Wilson and referring to the CDCA Plan, that "an application for lands which have been withdrawn, segregated, or classified by decision of the Secretary, or a proper delegate exercising his authority . . . may be rejected without deciding whether to classify the land as suitable for desert land entry." Nevertheless, despite that holding the Board ruled that, in the circumstances of the case, BLM was required to review the classification of the land following the regulations at 43 C.F.R. Part 2450, a ruling subsequently overturned by the Board in Dona Jeanette Ong (Ong II), 165 IBLA 274, 279 (2005).

In Ong II, the Board noted that it was "unclear how and to what extent the remnant classification regulations contained in 43 CFR Group 2400 are intended to relate to the newer land use planning regulations in 43 CFR Part and that BLM had not eliminated the classification regulations and incorporated classification procedures under the Taylor Grazing Act into the land use planning regulations in 43 C.F.R. Part 1600, as it had proposed to do in 1996. Id. at 279 n.7. BLM still has not done so, and the regulations in 43 C.F.R. Part 2400 are the focus of many of appellant's arguments. See SOR at 8-12; Supp. SOR at 3-5; Response to Answer at 2, 4, Those arguments do not need to be addressed. The regulations do not control resolution of the appeal because the CDCA Plan land designation precludes approval of the application. See Ong II, 165 IBLA at 279 n.7. As the Supreme Court stated in Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 69 (2004), section 302(a) FLPMA, 43 U.S.C. § 1732(a) (2006), which requires the Secretary to manage the public lands in accordance with land use plans, and the language of 43 C.F.R. § 1610.5-3(a), which requires BLM, following approval of a resource management plan, to conform all future resource management authorizations and actions to the approved plan, "prevent BLM from taking actions inconsistent with the provisions of a land use plan."

BLM properly rejected appellant's application.

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Accordingly, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior, 43 C.F.R. § 4.1, the decision appealed from is affirmed.

Bruce R. Harris Deputy Chief Administrative Judge

I concur:

H. Barry Holt Chief Administrative Judge

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