LISA YOUNG

192 IBLA 54 Decided November 30, 2017

United States Department of the Interior Office of Hearings and Appeals

Interior Board of Land Appeals N. Quincy St., Suite 300 Arlington, 22203

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

LISA YOUNG

Decided November 30, 2017

Appeal from and petition to stay a Decision Record of the Manager, Grand Staircase-Escalante National Monument, Bureau of Land Management, approving updates and improvements on public land in the Calf Creek Recreation Area in Garfield County, Utah. DOI-BLM-UT-0300-2015-0040-EA.

Motion to dismiss petition for stay denied.

1. Rules of Appeals: Notice of Appeal

The Board's case law explains that the date of service under 43 C.F.R. § 4.411(a) may be established by the date an appellant or appellant's authorized representative received "actual notice" of the decision. When an

had notice of a decision, BLM's subsequent service of the decision does not extend the deadline for filing a notice of appeal.

2. Rules of Practice: Appeals: Notice of Appeal

There is no requirement that an "appeal" be labeled a notice of appeal or even use the word appeal. The Board wi l l construe a document as a notice of appeal when the document expresses an objection to a final decision that is adverse to the complaining party.

3. Administrative Procedure: 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

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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.

4. Administrative Procedure: Standing

The Board's rules define a "party to a case" to include a person who has participated in the process leading to the decision on appeal, such as by commenting on an environmental document. An appellant who previously commented on an environmental assessment for a BLM project meets the "party to a case" requirement for standing under 43 C.F.R. § 4.410(b).

5. Administrative Procedure: Standing

In order to demonstrate adverse effect, an appellant must make colorable allegations, supported by specific facts set forth in an affidavit, declaration, or other statement, that establish a causal relationship between the approved action and alleged injury to a legally cognizable interest. The appellant need not prove that an adverse effect wil l , in fact, occur as a result of the BLM action. But the threat of injury and its effect on the appellant must be more than hypothetical.

6. Administrative Procedure: Stays

Under the Board's regulations, a party requesting a stay bears the burden of proof to demonstrate that a stay should be granted. Specifically, the petition for a stay must show sufficient justification based on the following standards: the relative harm to the parties i f the stay is granted or (2) the likelihood of appellant's success on the merits; (3) the likelihood of immediate and irreparable harm i f the stay is not granted; and (4) whether the public interest favors granting the stay. A failure to satisfy any one of the stay criteria wi l l result in denial of a petition for stay. The Board wi l l deny a petition for a stay where the balance of the harms to the parties does not favor the appellant.

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APPEARANCES: Lisa Young, pro se, Escalante, Utah; Leah Peterson, Esq., Office of the Regional Solicitor, U.S. Department of the Interior, Salt Lake City, Utah, for the Bureau of Land Management.

OPINION BY DEPUTY CHIEF ADMINISTRATIVE JUDGE ROBERTS

Lisa Young appeals from and petitions for a stay of the effect of a June 16, 2017, Decision Record (DR) of the Manager, Grand Staircase-Escalante National Monument (GSENM), Bureau of Land Management (BLM), approving updates and improvements to the currently developed portions of the Calf Creek Recreation Area in Garfield County, Utah. Based on the June 2017 Calf Creek Recreation Area Site Improvements Environmental Assessment in the DR BLM authorized actions to replace old and deteriorated site amenities; improve vehicular improve accessibility; reduce impacts from increased visitation; and improve the recreational experience.2 BLM has filed a motion to dismiss the appeal on two bases, i.e., untimeliness and lack of standing. BLM also opposes the petition for stay. In this opinion, we deny BLM's motion to dismiss, and we deny Young's petition for stay.

SUMMARY

An appellant is subject to a mandatory time period for filing a notice of appeal, and BLM lacks authority to extend this time period. An appellant who receives actual notice of a BLM decision must file a notice of appeal within 30 days of notice (and a 10 day grace period, for mailings made before expiration of the 30 days). In this case, on July 21, 2017, upon receiving actual notice of the DR, Young e-mailed BLM a request for an extension of time to file a notice of appeal, stating her objections to BLM's plan to upgrade and improve the Calf Creek Recreation Area. We construe Young's July 21, 2017, e-mail, in which she stated her intent to appeal the DR, and expressed her concerns about the proposed project, as a timely notice of appeal, even though she did not label i t as such. Consequently, we conclude that her appeal was timely filed.

To have standing to appeal from a BLM decision, an appellant must be a party to a case and have a legally cognizable interest that is or is substantially likely to be adversely affected by the decision. Young is a party to a case since she participated in the process leading to the decision by commenting on the draft EA. She also meets the adversely affected requirement since she has provided colorable allegations with respect to her and her family's repeated use of a campsite and a

DR at unpaginated (unp.) 1.

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water play area, and has alleged adverse impacts from the project, such as endangerment from flash flooding. Young has standing to appeal the DR.

In order for the Board to grant a petition for stay, the stay petitioner must show sufficient justification for a stay, including the requirement that the balance of the harms to the parties favors granting a stay. In this case, the harms to BLM resulting from a stay are expected to include increased problems with traffic flow and safety, as well as damage to vegetation and soils. The harms alleged by Young from denying the stay relate to flash floods in the area that have occurred at the project area in the past, and that may be exacerbated by the upgrades and improvements. She also alleges that implementing the project wi l l result in harm to migratory and special status bird species, but she does not explain how the project wi l l cause such harm. We conclude that the balance of the harms from granting or denying a stay weighs in favor of BLM rather than Appellant, and accordingly deny the petition for stay.

BACKGROUND

The Calf Creek Recreation Area is located along Highway 12 between Escalante and Boulder, Utah, in Garfield County. Recreational facilities at Calf Creek were initially constructed in 1962-1963 and included nine camping units, a group picnic area, bridges, toilets, roads, and a water system.3 These facilities, including the Lower Calf Creek Falls Trail, which was constructed in 1968, have been maintained, improved, and expanded since that time.4 The entire Calf Creek Recreation Area was established in 1970 for its recreational and scenic value.5 The project area subject to Young's appeal covers approximately 20 acres and includes the campground and day-use area as well as the Lower Calf Creek Falls Trailhead.6

The developed portion of the Calf Creek Recreation Area is the most visited recreation site within the entire 1.9-million-acre GSENM, and the demand for use is exceeding current capacity in various ways.7 Current day-use parking needs exceed the current parking area capacity during much of the visitation season, causing overflow parking that results in visitors parking along the entrance road and highway, creating traffic-flow and safety issues, and damaging vegetation and

EA at 1. Id. Id. Id. at 8. Id. at 17-18.

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soils.8 The current campground is filled to capacity during much of the visitation season, with limited associated parking spaces.9 For a number of years, BLM has allowed overflow and dispersed tent camping in an open area adjacent to the lower day-use picnic area, which has led to an expanding footprint of disturbed vegetation and soils.10

The purpose of the Calf Creek project is to accommodate recreation needs by upgrading the facilities, improving site access, enhancing the recreational experience for visitors, and providing long-term protection to riparian resources within the developed portion of Calf Creek Recreation Area.11 Construction activities associated with the upgrades and improvements would occur in several phases over several years.12

BLM solicited public input on the Calf Creek project by mailing notification of the availability of the EA to 102 individuals and organizations for a 35-day review and comment period, i.e., from December 28, 2016, through February 1, 2017. On February 1, 2017, Young submitted comments on the EA via e-mail.13 BLM considered the comments and made changes to the Proposed Action, as reflected in the DR, signed on June 16, 2017. On June 27, and again on June 29, 2017, BLM e-mailed notification of the DR to Young at the e-mail address she used to submit her comments to BLM, but those e-mails were returned as undeliverable.14

On July 21, 2017, Young e-mailed BLM, requesting an extension of the appeal period because she did not learn until that day, i.e., July 21, 2017, that BLM had signed the DR.15 She stated that she "never received a notice of this Decision," and that she had planned on appealing.16 She requested an extension of time to file an appeal.17 She also expressed concern about certain issues, including BLM's replacement of a campsite with "walk-in" sites, used by her family,' her prior

Id. at 3. Id. Id. Id. 8. Young e-mail and attached letter to BLM, commenting on the draft EA for the

project (Feb. 1, 2017). BLM e-mail to Young (Aug. 4, 2017) (recounting BLM's unsuccessful attempts to

e-mail young on June 27 and 29, 2017); BLM e-mails to Young, returned as undeliverable (June 27 and 29,

Young e-mail to BLM (July 21, 2017). Id. Id.

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notification to BLM of two instances when the area had flooded; and the removal of historic structures that the surrounding communities had reportedly used for years.18

On August 1, 2017, BLM sent a Decision Notification to all commenters, including Young,19 notifying them that they could view the DR, EA, and Finding of No Significant Impact on BLM's internet site, and BLM included the internet site l ink . 2 0 In that notification-letter BLM stated, "[a]ny appeal must be filed within 30 days of this decision notification." On August 4, 2017, Young requested from BLM the analysis of comments on the EA.2 1 On August 7, 2017, Young informed BLM that when she downloaded the EA from BLM's website, i t did not complete the download and that she was missing one-third of the EA.2 2 Young has asserted that BLM mailed a copy of the August 1, 2017, notification-letter by hardcopy to her and that she received the hardcopy on August 10, 2017.23

On August 29, 2017, Young mailed a document to BLM titled, Statement of Reasons, and Petition for Stay," which was received by BLM within 10 days of mailing, on September 5, 2017.

DISCUSSION

A. Young's Appeal Was Timely

The Board lacks jurisdiction to entertain an untimely The Board's rules impose a "mandatory time limit" for filing a notice of appeal.25 Under 43 C.F.R. § 4.41l(a)(2)(i), "[a] person served with the decision being appealed must transmit the notice of appeal in time for i t to be received in the appropriate office no later than 30 days after the date of service of the decision . . . "No extension of

Id. See internal BLM e-mail (July 28, 2017); BLM notification letter e-mailed to

Young (Aug. 1, BLM notification letter, e-mailed to Young (Aug. 1, 2017). Young e-mail to BLM (Aug. 4, 2017). Young e-mail to BLM (Aug. 7, 2017). Young e-mail to BLM (Aug. 30, 2017). E.g., Saint James Village, Inc., 154 IBLA 150, 153 (2001) (citing, inter alia,

43 C.F.R. § 4.411(c)); Nicky Nickoli, 43 IBLA 296, 299 (1979). 43 C.F.R. § 4.411. Id. § 4.41l(a)(2)(i).

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time wil l be granted for filing the notice of appeal," and an untimely "appeal wi l l be dismissed by the Board."27

The Board's case law explains that the date of service under 43 C.F.R. § 4.411(a) "may be established by the date an appellant or appellant's authorized representative received 'actual notice' of the decision."28 For instance, in Minchumina Homeowners Association, some appellants admitted that they received newspaper notice of publication of a BLM decision, but did not file notices of appeal within 30 days of having read the newspaper publication.29 The Board dismissed their appeals as untimely.30 We have held that regardless of the form of service, there must be evidence of the service in the record (such as evidence of receipt by the appellant), to determine whether an appeal is timely.31 In cases in which we determined that the appellant actually received notice of a decision, we have held that BLM's subsequent service of the decision did not extend the deadline for filing a notice of appeal.32

The administrative record confirms BLM's position that Young had actual notice of the DR on appeal as of July 21, 2017. Specifically, in an e-mail to BLM dated July 21, 2017, Young stated that she had just learned that the DR had been

Id. § 4.411(c); accord Oregon Natural Resources Council, 161 IBLA 323, 326 (2004) ("The regulatory appeal period [setting the deadline to file a notice of appeal] cannot be extended or shortened by a statement in a BLM decision that is contrary to the regulation.")

Saint James Village, Inc., 154 IBLA at 153 (citing, inter alia, Saint James Village, Inc., 139 IBLA 1, 3-4 (1997); Minchumina Homeowners Association (Minchumina), 93 IBLA 169, 173 (1986)); see also Wildlands Defense, 187 IBLA 233, 236, 242, 243 (2016).

Minchumina, 93 IBLA at 172-73; see also Saint James Village, Inc., 139 IBLA at 3 & n.2 (counsel for the appellant became aware of issuance of the decision in a meeting with BLM, and the Board used this date as the actual notice from which to calculate the 30-day appeal deadline).

Minchumina, 93 IBLA at 173. Trails Preservation Alliance, 180 IBLA 177, 180 & n.6 (2010); Oregon Natural

Resources Council, 161 IBLA at 326 & n.3 (both distinguishing Minchumina, 93 IBLA at 172-73); accord Wildlands Defense, 187 IBLA at 242-43 (the Board disagreed with BLM's argument that the posting of a decision on its BLM's

internet site started the clock running for the 30-day appeal deadline, where the appellant did not admit to being actually aware of the decision until a couple of months later).

E.g., Humane Society of Southern Nevada, 119 IBLA 216, 216 (1991) (citing, inter alia, 43 C.F.R. § [(c)]; John H. Blackwood, 89 IBLA 379, 381-82 (1985)).

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signed, effectively admitting to having actual notice of the DR as of that date. Young requested in that e-mail an extension of time to file the notice of appeal.

On August 1, 2017, BLM transmitted its DR notification letter to Young stating that the appeal deadline had been extended to 30 days after August 1, 2017, rather than 30 days after she received actual notice of the DR.33 But BLM was mistaken, since, under 43 C.F.R. § 4.411(c), "[n]o extension of time wi l l be granted for filing the notice of appeal."34

[2] We conclude that Young's July 21, 2017, e-mail constitutes a timely notice of appeal. In Bosque Preservation Action Committee, the Board stated: "There is no requirement that a document be labeled a notice of appeal or even use the word 'appeal,' and the Board has adopted a policy that a document filed objecting to a final decision should be treated as a notice of appeal. I t wi l l be construed as a notice of appeal i f i t challenges a BLM decision which is adverse to the complaining party."35 In her July 21, 2017 e-mail, Young indicated that she planned to appeal the DR, and stated several bases for her We construe her e-mail as constituting a challenge to BLM's DR, and conclude that i t qualifies as a timely filed notice of appeal of BLM's June 16, 2017, decision.

BLM questions whether Young's e-mail can qualify as a notice of appeal since BLM had not consented in writing to service by e-mail.37 As we have noted, on February 1, 2017, Young submitted comments on the EA via e-mail.38 On June 27, and again on June 29, 2017, BLM e-mailed notification of the DR to Young at the e-

See BLM notification-letter e-mailed to Young (Aug. 1, 2017); internal BLM e-mail (July 28, 2017) (explaining that BLM's intent in the Aug. 1, 2017, notification letter was that the appeal period would begin from the date of the notification letter); cf. Entek LLC, 191 IBLA 291, 294-95 (2017) (affirmed a State Director's dismissal of a request for State Director Review as untimely even though BLM had incorrectly advised the appellant as to the regulatory appeal deadline).

See Motion to Dismiss at 5. Bosque Preservation Action Committee, 160 IBLA 185, 187 n.3 (2003);

accord Saint James Village, Inc., 139 IBLA at 3-4 ("The Board does not require that a document be labeled a notice of appeal or even use the word A document may be a notice of appeal i f i t challenges a BLM decision.")

fee Young e-mail to BLM (July 21, 2017). Motion to Dismiss at 5 n.2; see 43 C.F.R. § (service of a notice of

appeal may be made by electronic means, " i f the person to be served has previously consented to that means in writing").

Young e-mail and attached letter to BLM, commenting on the draft EA for the project (Feb. 1, 2017).

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mail address she used to submit her comments to BLM. BLM's correspondence on July 28, 2017, and its August 1, 2017, notification-letter were prepared in response to Young's July 21, 2017, e-mail.39 This record demonstrates the effectiveness of electronic communication with this BLM office, even in the absence of express consent. BLM received the e-mailed notice of appeal immediately after it was transmitted, well within 30 days of Young's receipt of actual notice of the DR subject to her challenge. We conclude that Young's July 2017, e-mail constituted a timely notice of appeal of the DR.

We understand that this ruling may render Young's statement of reasons (SOR), filed September 5, 2017, to be untimely, since an SOR is to be filed no later than 30 days after filing the notice of appeal.40 The Board's rules provide that we may summarily dismiss an appeal when an SOR is untimely filed,41 but we consistently decline to dismiss an untimely SOR absent prejudice to the opposing party.42 We see no prejudice to BLM from the delay in filing the SOR in this case since BLM received the SOR and has responded to it, through counsel, in its motion to dismiss. For the same reason we find no prejudice to BLM from Young's failure to serve the Solicitor's Office with a certified copy of her filings, as required by 43 C.F.R. § 4.413. 43

B. Young Has Standing to Appeal

1. Standard of Review for Standing to Appeal

[3] To appeal and seek a stay of a BLM decision, an appellant must have standing under the Board's rules, including 43 C.F.R. § 4.410. 44 This regulation requires an appellant to demonstrate i t is both a "party to a case" and "adversely

See internal BLM e-mail (July 28, 2017); BLM notification letter e-mailed to Young (Aug. 1, 2017).

43 C.F.R. § 4.412(a). Id. §§ 4.402(a), 4.412(a), (c). See, e.g., Tekxon Onshore Oil & Gas, LLC, 184 IBLA 134, 138-39 & (2013);

Underwood Livestock, Inc., 165 IBLA 128, 130 n.3 (2005); Sierra Club Uncompahgre Group, 152 IBLA 371, 375 (2000). See Motion to Dismiss at 5 n.2; Wilfred Trust, 189 IBLA 284, 285-86

(2017) (the Board has consistently declined to dismiss an appeal for failing to properly serve the Solicitor where there is no showing of prejudice from that failure).

E.g., Wildlands Center, 190 IBLA 295, 300 (2017) (also citing 43 C.F.R. § 4.21(a)(2) (concerning stay petitions)).

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affected" by the decision it seeks to appeal to the Board."45 The appellant bears the burden to demonstrate both of these elements of standing.46 I f either element is lacking, the Board must dismiss the appeal for lack of jurisdiction.47

2. Young Is a Party to the Case

[4] Our rules define a "party to a case" to include a person who has participated in the process leading to the decision on appeal, such as by commenting on an environmental document.48 Young meets the "party to a case" requirement since she commented on the draft EA for the project.49

3. Young Is Adversely Affected by the DR

A party to a case is adversely affected by a decision that party has a legally cognizable interest, and the decision on appeal has caused or is substantially likely to cause injury to that A legally cognizable interest can include cultural, recreational, or aesthetic use and enjoyment of the affected public lands.51

The interest need not be an economic or property interest; however, a deep concern for a problem wil l not suffice.52

[5] In order to demonstrate that the party is adversely affected, the party is required to 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.53 In establishing that a decision is substantially likely to injure a legally cognizable interest, a party need not prove that an injury is certain, but the party must show that the threat of an injury and its effect on the party are more than hypothetical.54 Speculation that an injury might occur in the future wi l l not suffice.55

Id. Id. Id. 43 C.F.R. § 4.410(b). fee Young e-mail and attached letter to BLM, commenting on the draft EA for

the project (Feb. 1, 2017). E.g., Wildlands Center, 190 IBLA at 300 (quoting 43 C.F.R.

§ 4.410(d)). Id. Id. 300-01. Id. Id.

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With her SOR and petition for a stay, Young includes a "Statement of Standing" in which she asserts that she has '"a legally cognizable interest' in the public lands and wildlife species affected by the Calf Creek Recreation Area Site improvements project."56 She states that she "regularly visit[s] the project area in a professional and personal nature, intend[s] to continue to visit this area in the immediate and foreseeable future, and wil l be adversely affected i f the project is constructed . . . In addition, she asserts that her "family frequently uses the day use area during various times in the visitation season, both during the mid-day hours to use the water play area, and the evening hours for family cook-outs."58

In her SOR, Appellant argues that the project wi l l involve "taking out the existing campsite . . . and replacing it with walk-in sites," which wi l l result in a "significant safety risk."59 In particular, she states that the area where BLM proposes to construct walk-in sites has flooded twice in the past, and describes the high water mark and geographical features that she believes may well "backup and inundate the area" in the future as well .6 0

She indicates that she has "ongoing interests in the resources that wi l l be affected by the project, including the wildlife species and habitat present, and the recreational services provided at this facility which are affected by the proposed

She states that as a wildlife biologist with the U.S. Forest Service, she has worked with GSENM's wildlife biologist in conducting bat and hummingbird surveys. She asserts that she has a "keen interest in the protection of wildlife species in this project area and region."62

Based on Young's assertions, we find that she has identified a legally cognizable interest in the subject matter on appeal to the Board. She has made colorable allegations, supported by specific facts set forth in her appeal documents, demonstrating that BLM's approval of the project is substantially likely to affect her legally cognizable interests. While BLM argues that flooding in the project area is speculative, i t does not deny that past flooding has taken place.63 In its EA, BLM

Notice of Appeal, SOR, Petition for Stay at 2. Id. Id. 4. Id. 2. Id. See EA at 18.

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referred to recent flooding next to the water play which is an area Young's family uses.65 Young has provided specific allegations that locating the walk-in sites in an area subject to flooding wil l significantly impact public safety.66

In conclusion, since Young has demonstrated that she is a party to the case and is adversely affected by the decision she appeals, she has standing to appeal to the Board.

C. Petition for Stay

1. Standard of Review for Petitions for Stay

[6] Under the Board's regulations, a party requesting a stay bears the burden of proof to demonstrate that a stay should be granted.67 Specifically, the petition for a stay must show sufficient justification based on the following standards: the relative harm to the parties i f the stay is granted or denied; (2) the likelihood of appellant's success on the merits; (3) the likelihood of immediate and irreparable harm i f the stay is not granted; and (4) whether the public interest favors granting the stay.68 A failure to satisfy any one of the stay criteria wi l l result in denial of a petition for stay.69

2. The Relative Harms to the Parties Does Not Favor Granting a Stay

In her Petition for Stay, Young offers little more than a mention of the four stay criteria. She fails to show sufficient justification for a stay under any of the criteria. We wi l l focus on the relative harm to the parties i f the stay is granted or denied. Young simply states that "[t]here is no harm to the BLM from a stay,"70 but does not expand upon this or articulate the harm to Young's legally cognizable interests i f a stay is denied.

We gather from Young's SOR, however, that she is concerned about the fact that the project area has flooded in the past and that the area may flood again. She states that proceeding with the project "will result in significant effects, and risk to

Id. Id. at 33. at 5. 43 C.F.R. 4.21(b)(2). Id. § 4.21(b)(1). Blue Mountains Biodiversity Project, League of Wilderness Defenders, 188 IBLA

143, 152 (2016). at 8.

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public health and safety . . . In particular, she emphasizes the risks associated with "flash flooding . . . during the night," even the "risk . . death to visitors in a designated campground . . .

Young also alleges that implementing the project wi l l result in harm to migratory and special status bird species.73 But she fails to provide any information or support for this assertion.74

We find that the harms alleged by BLM i f the project were to be delayed by a stay are greater than i f we were to deny a stay. In describing the purpose and need for the project, BLM stated that existing day-use parking capacity exceeds the current footprint during much of the season, and that parking overflow leads visitors to park along the entrance road and highway, creating traffic flow and safety issues as well as damage to vegetation and soils.75 BLM also stated that the facilities are deteriorating, create safety concerns, and do not meet the Architectural Barriers Act Accessibility Guidelines for Outdoor Developed

BLM's project is needed to address immediate safety concerns and to prevent further damage to vegetation and soils. A stay of the decision would delay BLM's project, which is directed at addressing these safety and other concerns.

We conclude that Young has not demonstrated that the balance of harms weighs in her favor. While the impacts that she alleges provide a sufficient basis for our conclusion that she has standing to appeal BLM's decision, we conclude that those harms do not outweigh the harms that BLM argues wi l l result i f we grant the petition for a stay.77 We therefore deny Young's petition for a stay.

CONCLUSION

We thus deny BLM's motion to dismiss Young's appeal on the basis that i t was untimely filed, or because Young is without standing to appeal BLM's decision. And we deny Young's petition for a stay.

5. Id. id. at 7-8. See id. at 8. Id. See Watersheds, Inc., 191 IBLA 1, 9 (2017).

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Therefore, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior,78 we deny BLM's motion to dismiss the appeal, and we deny Young's petition to stay the effect of BLM's decision.

I concur:

43 C.F.R. § 4.1.

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