You can argue about the policy issues all you want for the next...

You can argue about the policy issues all you want for the next couple weeks, because there’s not much else to do. But if you’re really interested in the outcome of the September 17 hearing, ask another federal judge what should happen.

The best argument for the Hualapai is that BLM violated the statute (NHPA, Section 106) that required them to include Hakamwe in the “Area of Potential Effect.” There may be other statutes that were violated, and those should be described in the pleadings due next week.

This is from a 2023 order in the Thacker Pass case, by the judge there:

While this case encapsulates the tensions among competing interests and policy goals, this order does not somehow pick a winner based on policy considerations. That is not this Court's role. The Court's role instead is to carefully apply the applicable standard of judicial review to consider the decision of a federal agency that is generally entitled to deference, based entirely on the contents of the records before the agency at the time of its challenged decision.

The Court reviews BLM's decision to issue the ROD based entirely on the contents of the Administrative Record (“AR”) under the APA. “The APA does not allow the court to overturn an agency decision because it disagrees with the decision or with the agency's conclusions about environmental impacts.” River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010). But “nder the [APA], a reviewing court shall ‘hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law....”' Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994) (quoting 5 U.S.C. § 706(2)(A)). An agency's decision may be reversed as arbitrary and capricious “if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). “To make this finding, the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971).

But in reviewing an agency's decision under this standard, “the reviewing court may not substitute its judgment for that of the agency.” Envtl. Def. Ctr., Inc. v. U.S. Envtl. Prot. Agency, 344 F.3d 832, 858 n.36 (9th Cir. 2003); see also Rosemont, 33 F.4th at 1 216 (same). And the Court's “review is limited to ‘the grounds that the agency invoked when it took the action.”' Id. (citation omitted). Although this review is narrow, “a reviewing court must conduct a searching and careful inquiry into the facts.” Nw. Motorcycle Ass'n, 18 F.3d at 1471. “A satisfactory explanation of agency action is essential for adequate judicial review, because the focus of judicial review is not on the wisdom of the agency's decision, but on whether the process employed by the agency to reach its decision took into consideration all the relevant factors.” Asarco, Inc. v. U.S. Envtl. Prot. Agency, 616 F.2d 1153, 1159 (1980).

The Court reviews for substantial evidence the agency's factual conclusions based on the administrative record. See Ctr. for Biological Diversity v. Zinke, 900 F.3d 1053, 1068 (9th Cir. 2018). “Where ‘evidence is susceptible of more than one rational interpretation,' [the Court upholds] the agency's finding if a ‘reasonable mind might accept [it] as adequate to support a conclusion.”' Id. (citation omitted).

Bartell Ranch LLC v. McCullough, 3:21-cv-00080-MMD-CLB, 3-4 (D. Nev. Feb. 6, 2023)