Full opinion text
ORDER RE: SUMMARY JUDGMENT MOTIONS SUSAN ILLSTON, District Judge. INTRODUCTION Plaintiffs are eleven environmental organizations who have sued the Bureau of Land Management (“BLM”) and the U.S. Fish and Wildlife Service (“FWS”). The BLM manages a vast area of public land known as the California Desert Conservation Area (“CDCA”), home to a number of protected species, including the threatened desert tortoise and an endangered plant, the Lane Mountain milk-vetch. FWS consults with the BLM and is required to evaluate BLM actions that affect these protected species. Plaintiffs’ claims arise out of the BLM’s approval of three land management plans that amend the California Desert Conservation Area Plan of 1980, the land use plan governing the CDCA: the West Mojave (“WEMO”) Plan; the Northern and Eastern Mojave (“NEMO”) Desert Management Plan, and the Northern and Eastern Colorado (“NECO”) Desert Coordinated Management Plan. With respect to the WEMO Plan, plaintiffs claim that the BLM’s designation of an extensive “Off-Highway Vehicle” (“OHV”) route network throughout the WEMO planning area violates the Federal Land Policy and Management Act of 1976 (“FLPMA”), 43 U.S.C. §§ 1701-85. Plaintiffs also claim that the Final Environmental Impact Statement and Report for the West Mojave Plan (“FEIS”) prepared for the WEMO Plan violates the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321 et seq. Finally, plaintiffs claim that Biological Opinions (“BiOps”) issued by the U.S. Fish and Wildlife Service for the WEMO, NEMO and NECO Plans do not comply with the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-44, and that all three management plans imperil the desert tortoise and the Lane Mountain milk-vetch. The Court recognizes the complexity of the issues presented in this case, and that defendants have been given the difficult task of addressing the interests and needs of OHV recreationists while at the same time protecting listed species as required by law. In deciding the pending summary judgment motions, the Court has been mindful that its review is “narrow” but “searching and careful,” Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989), and that the Court will “reverse a decision as arbitrary and capricious only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation 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.” The Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir.2008) (en banc) (internal citations omitted). In summary, after careful consideration of the parties’ papers and the arguments of counsel, as well as of the voluminous administrative record, the Court concludes the BLM violated the FLPMA and the NEPA in numerous respects, but that defendants complied with their obligations under the ESA. With regard to FLPMA, the BLM’s route designation process — insofar as that process is documented in the administrative record — did not comply with regulations mandating that the BLM consider various “minimization criteria” when designating OHV routes. In addition, because the WEMO Plan authorizes numerous OHV routes that were not in existence in 1980, the WEMO Plan is inconsistent with the governing CDCA land use plan, which limits OHV routes to those existing in 1980. With regard to NEPA, the Court concludes that the FEIS is flawed because it does not contain a reasonable range of alternatives to the proposed action, and its discussion of the “no action” alternative is incomplete. However, the Court finds that other aspects of the FEIS comply with NEPA, such as the FEIS’s discussion of mitigation measures, and its analysis of some of the impacts of the WEMO Plan. Turning to the ESA claims and the two BiOps at issue, the Court finds that FWS considered all relevant factors, and that its analyses and conclusions are reasoned and supported by the record. The BiOps explain in detail why FWS concluded that the WEMO and NECO Plans would not jeopardize the continued existence of the desert tortoise and the Lane Mountain milk-vetch, as well as why those plans would not destroy or adversely modify designated critical habitat of the desert tortoise. The Court also finds that the amended Incidental Take Statements (“ITSs”) for both BiOps comply with the law. BACKGROUND I. Statutory background A. Federal Land Policy and Management Act The FLPMA, 43 U.S.C. §§ 1701-1785, declares that public lands must be managed for multiple uses in a manner that will protect the quality of the scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values, but also provides for outdoor recreation and human occupancy and use. See 43 U.S.C. § 1701(a)(7) & (8). As part of FLPMA, Congress designated 25 million acres of southern California as the CDCA. 43 U.S.C. § 1781(c). Congress declared in FLPMA that the CDCA is a rich and unique environment teeming with “historical, scenic, archeological, environmental, biological, cultural, scientific, educational, recreational, and economic resources.” Id. Congress found that this desert and its resources are “extremely fragile, easily scarred, and slowly healed.” Id. For the CDCA and other public lands, Congress mandated that the BLM “shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands.” Id. § 1732(b). Of particular relevance to this case are regulations addressing OHV use on pub-lie lands. In 1978, the BLM promulgated 43 C.F.R. § 8342.1, which governs the opening of OHV routes within public lands under the agency’s control. See Recodification of Recreation Regulations, 43 Fed. Reg. 40,734 (Sept. 12, 1978). 43 C.F.R. § 8342.1 provides: The authorized officer shall designate all public lands as either open, limited, or closed to off-road vehicles. All designations shall be based on the protection of the resources of the public lands, the promotion of the safety of all the users of the public lands, and the minimization of conflicts among various uses of the public lands; and in accordance with the following criteria: (a) Areas and trails shall be located to minimize damage to soil, watershed, vegetation, air, or other resources of the public lands, and to prevent impairment of wilderness suitability. (b) Areas and trails shall be located to minimize harassment of wildlife or significant disruption of wildlife habitats. Special attention will be given to protect endangered or threatened species and their habitats. (c) Areas and trails shall be located to minimize conflicts between off-road vehicle use and other existing or proposed recreational uses of the same or neighboring public lands, and to ensure the compatibility of such uses with existing conditions in populated areas, taking into account noise and other factors. (d) Areas and trails shall not be located in officially designated wilderness areas or primitive areas. Areas and trails shall be located in natural areas only if the authorized officer determines that off-road vehicle use in such locations will not adversely affect their natural, esthetic, scenic, or other values for which such areas are established. 43 C.F.R. § 8342.1(a)-(d). These route designation criteria are referred to by the parties and throughout this order as the “minimization criteria.” B. The National Environmental Policy Act The NEPA requires federal agencies to analyze the environmental impacts of a proposed action before proceeding with that action. See 42 U.S.C. § 4332(2)(C). Under NEPA and the regulations promulgated thereunder by the Council on Environmental Quality (“CEQ”), federal agencies must prepare and circulate to the public a comprehensive environmental impact statement (“EIS”) so that the environmental impacts can be considered and disclosed to the public during the decision-making process. See 40 C.F.R. §§ 1501.2, 1502.5. In the EIS, the agency must identify direct, indirect, and cumulative impacts of the proposed action, consider alternative actions (including the alternative of taking no action) and their impacts, and identify all irreversible and irretrievable commitments of resources associated with the action. See 42 U.S.C. § 4332(2); 40 C.F.R. § 1502.14(d). C. The Endangered Species Act Congress enacted the ESA to protect and conserve endangered and threatened species. 16 U.S.C. § 1531(b). “Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [designated critical] habitat.” Id. § 1536(a)(2); see 50 C.F.R. Pt. 402. After the agencies engage in the consultation process, the consulting agency issues a biological opinion (“BiOp”), which includes a “detailed discussion of the effects of the action on listed species or critical habitat.” 50 C.F.R. § 402.14(h)(2). The BiOp assesses the likelihood of the proposed action resulting in jeopardy to a listed species or destruction or adverse modification to designated critical habitat. See 50 C.F.R. § 402.14(g)(4). If an action is not likely to result in jeopardy, but is reasonably likely to result in “take” incidental to the proposed action, then the consulting agency attaches an ITS to the BiOp. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i)(l)(i-v). If the agency implements the project as proposed and complies with the terms and conditions (“T & Cs”) of the ITS, ESA § 7(o )(2) exempts the specified level of take from the ESA § 9 take prohibition. 16 U.S.C. § 1536(o )(2). Congress also directed the Secretary to develop and implement recovery plans to provide guidance for the long-term objective of removing species from the list of endangered or threatened species. 16 U.S.C. § 1533(f)(1). In 1994, the Secretary prepared a recovery plan for the desert tortoise. II. Factual background A. Management of the CDCA In establishing the CDCA, Congress declared that the California desert is a “total ecosystem that is extremely fragile, easily scarred, and slowly healed,” and that it is a rich and unique environment with “historical, scenic, archaeological, environmental, biological, cultural, scientific, educational, recreational, and economic resources.” 43 U.S.C. § 1781(a)(l)-(2). Congress also stated that “the use of all California desert resources can and should be provided for in a multiple use and sustained yield management plan to conserve these resources for future generations, and to provide present and future use and enjoyment, particularly outdoor recreation uses, including the use, where appropriate, of off-road recreational vehicles.” Id. § 1781(a)(4). The CDCA contains approximately 25 million acres of land, of which the BLM administers slightly less than one-half. AR 221935. The WEMO and NECO Plan areas are located within the CDCA. The BLM issued a long-range management plan for the CDCA in 1980. AR 222401-222555. The CDCA Plan identified 12 plan elements for consideration, including cultural resources, wildlife, vegetation, livestock grazing, recreation, and motorized vehicle access, and the establishment of special management areas, such as Areas of Critical Environmental Concern (“ACEC”), and 11 types of special areas. AR 221936, 221941-222033. The CDCA Plan lists approximately 75 ACECs, including the Desert Tortoise Natural Research Area. AR 222030-220031. Over the years, the CDCA Plan has been amended a number of times. The WEMO and NECO Plans amended the CDCA Plan. 1. 1982 amendment to the CDCA Plan and “existing” OHV routes A central issue in this case relates to the designation of OHV routes in portions of the CDCA. In 1982, the BLM significantly revised the 1980 CDCA Plan to address OHV use. The BLM determined that public land areas within the CDCA would be designated as “open,” “closed,” or “limited” based upon the particular multiple use classification for the area. AR 222004. Within “open” areas, vehicles could travel anywhere, while vehicle travel was prohibited in “closed” areas. Id. With regard to “limited” areas, the CDCA Plan, as amended in 1982, states: “Limited” vehicle access means that motorized-vehicle access is allowed only on certain “routes of travel,” which include roads, ways, trails, and washes. At the minimum, use will be restricted to existing routes of travel. An existing route of travel is a route established before approval of the Desert Plan in 1980, with a minimum width of two feet, showing significant surface evidence of prior vehicle use or, for washes, history of prior use. Where necessary, other limitations will be stipulated. In all areas of limited vehicle use, special attention will be given to identifying conflict areas, zones of route proliferation, and special sites or resources being damaged by vehicle use. The public will be involved in each step of this process. Appropriate actions will then be taken to reduce or eliminate the problem, depending on the multiple-use class and degree of control needed. AR 222005 (emphasis added). Somewhat confusingly, in addition to OHV areas being designated as “open,” “closed,” or “limited,” OHV routes could also be designated as “open,” “closed,” or “limited.” Id. “Open” routes were open to OHVs, generally without restriction; “closed” routes prohibited OHV use except for certain official, emergency or otherwise authorized vehicles; and “limited” routes permitted OHVs, subject to limitations on the number and types of vehicles allowed, as well as restrictions on time or season and speed limits. AR 222005-222006. The CDCA Plan provided special management considerations for OHV use on washes, sand dunes and dry lakes. AR 222006. Although the CDCA Plan defines “existing routes” as those established before approval of the 1980 CDCA Plan and provides a description of the characteristics of those routes, there was no complete inventory of routes existing in 1980 when the plan was adopted. AR 230282. The original 1980 plan relied on vehicle access information depicted on motorized vehicle interim access guides based on data from at least 1973 in identifying an interim route management program. AR 222009. When the 1980 CDCA Plan was approved, the interim designations became effective. Id. In 1982 when the CDCA Plan was amended, the BLM replaced those interim designations with the guideline that “existing routes of travel” may be used in Class L, Class M, and certain Class I areas. Id. There is, of course, an inherent tension between the CDCA Plan’s statement that OHV routes are limited to those in existence at the time of the adoption of the 1980 Plan, and the factual reality that the BLM did not have an inventory or listing of what those routes were in 1980. In part, the roots of the current litigation can be traced to this conflict. 2. 1985-1987 OHV route designations After the CDCA Plan was amended in 1982, the BLM began the process of creating an inventory of existing OHV routes using aerial photographs from 1979 and, where available, U.S. Geological Survey base maps. AR 230283. The BLM concluded that “the photo coverage, in and of itself, was not [an] adequate means of identifying all existing routes.” Id. As a result, BLM staff conducted a route designation project that resulted in the “1985-1987 OHV route designations.” The FEIS for the WEMO Plan describes this process as follows: 1985-87 Off-Road Vehicle Designations: BLM conducted a field and map inventory of off highway vehicle routes throughout the planning area in the mid-1980s and, based upon that inventory, identified a network of open motorized vehicle access routes. BLM personnel inventoried and evaluated existing routes of travel. Information from existing maps and aerial photos was supplemented by field checks. This information was then utilized to create a known route inventory that primarily consisted of known “two-track” routes (i.e., “single-track” motorcycle routes were generally not part of the inventory). Public meetings were conducted and members of the public also reviewed these route inventories. Criteria for determining which routes were to remain open was based upon public access needs, recreational values and resource conflicts. Following public meetings, decisions to designate the route network were announced. On August 21, 1985, BLM published a notice in the Federal Register titled Off-Road Vehicle Designation Decisions; Ridgecrest Resource Area, CA (Federal Register, Vol. 50, No. 182). Two years later, on June 19, 1987, BLM published Federal Register notice titled Off-Road Vehicle Route Designation Decisions for the California Desert District, Barstow Resource Area (Federal Register, Vol. 52, No. 118, p. 23364); and, on September 22, 1987 BLM published a Federal Register notice titled Off-Road Vehicle Route Designation Decisions for the California Desert District, Barstow Re source Area (Federal Register, Vol. 52, No. 183, p. 35589). These notices opened 2,949 miles of off highway vehicle routes. AR 202199; see also AR 230278-230795 (“1985 and 1987 Route Designations: Bar-stow and Ridgecrest Resource Areas”). 3. ACEC OHV route designations In addition to the 1985-1987 OHV route designations, between 1982 and 1994 BLM designated 317 miles of OHV routes within each of the 20 ACECs in the WEMO Plan area. AR 202199-202202. Because these routes, referred to as the “ACEC routes,” were designated separately from the 1985-1987 OHV routes, the ACEC routes did not always connect seamlessly to the 1985-1987 network. AR 201843. 4. Development of the WEMO Plan and OHV route designations The WEMO Plan establishes a 5,098 mile OHV route network in the WEMO Plan area, and a significant portion of these routes are derived from the 1985— 1987 OHV routes, as well as the ACEC routes. AR 201843. The background leading up to the WEMO OHV route network is long and complicated, but a full recounting is necessary to understanding the claims and issues in this case, a. Ord Mountain route designation In 1995, BLM staff in the Barstow Field Office designated an emergency OHV route network for the Ord Mountain planning unit due to a “noted increase in regional route proliferation, concern for desert tortoises within the designated Ord Mountain Desert Tortoise Critical Habitat Unit [], and other at-risk natural resources.” AR 221204. According to the record, the emergency designation involved only limited public input, and “[a] consensus emerged between BLM and representatives of several interest groups, that a 100 percent vehicle route inventory, as well as a higher level of public involvement, was needed.” Id. As a result, the BLM began a pilot route designation program in the Ord Mountain planning unit. The pilot program used an inventory based on air photos and ground verification. AR 221205. The results of the pilot program were examined in an Environment Assessment published in January 2000, AR 221195, and were later incorporated into a larger Western Mojave Desert Off Road Vehicle Designation Project. The Western Mojave Desert Off Road Vehicle Designation Project was the subject of a 2003 Environmental Assessment (“2003 EA”), and was ultimately approved by the BLM and incorporated into the CDCA. The 2003 EA, and the BLM’s decision to approve the 2003 EA, played a significant role in the BLM’s OHV route designation process and profoundly affected the OHV route network adopted in the WEMO plan. The 2003 EA is discussed in greater detail infra. AR 211390. b. The “Box” effort Between June and August 1998, the BLM met in Barstow (in an office known as “the Box”) and in Ridgecrest. The two Box teams used aerial photography, data from desert tortoise studies dating back to the 1970s, and other resources to identify “access and resource” attributes such as “recreational,” “redundant route,” “tortoise,” “sensitive plants,” “cultural,” and “8342 criteria.” AR 240696. Using this data, the BLM created large scale Geographic Information System (“GIS”) maps to develop route inventories. According to the declaration of William Haigh, Project Manager for the WEMO Plan, the Box process resulted in recommendations regarding whether to keep certain vehicle routes open or closed, but the rationale for each recommendation was not recorded. Haigh describes the Box process in detail, and states that the BLM held a series of public meetings regarding the Box recommendations. Haigh Decl. ¶¶ 32-33 (Docket No. 82-4). According to Haigh, the public response was highly critical due to allegedly inaccurate photo inventories and the lack of explanation for route closures. Id. In response to the public criticism, the BLM chose to disregard the Box effort’s recommended route designations, as well as much of the data compiled in the process. c. Western Mojave Desert Off Road Vehicle Designation Project On November 3, 1999, the WEMO Plan “Supergroup,” consisting of representatives of over 100 jurisdictions, agencies and non-governmental agencies, and private individuals, established four task groups to prepare the WEMO Plan. AR 221532-221538. The WEMO project manager, Haigh, recommended a new on-the-ground field survey of OHV routes and route designations, and various stakeholders agreed. The resulting effort became the Western Mojave Desert Off Road Vehicle Designation Project. The BLM first divided the entire WEMO region into three general groups comprised of (1) twenty-one sub-regions, (2) the existing ACECs, and (3) remaining areas with routes designated in 1985-1987. AR 201830, 211393-211394. Eleven of the twenty-one sub-regions were selected for “redesign” based in part on the designation of the desert tortoise and Lane Mountain milk-vetch as threatened and endangered species. AR 201832. Nine of the eleven selected sub-regions were redesigned using the “Decision Tree” process discussed in detail below. All areas outside the redesign area were “reviewed to ensure that they were compatible with the West Mojave Plan’s conservation strategy and were in compliance with federal regulations (specifically 43 CFR 8342).” AR 201842-201843. The BLM retained the consulting firm CH2M Hill to conduct on-the-ground surveys in ten of the eleven redesign sub-regions using GPS equipment; those surveys occurred between September 2001 and March 2002. The data collected during these surveys concerned route data (type, condition, level of use), and recreation or commercial data (camping, mining, utilities). AR 201832; see also SAR 3-320433-Public (chart of data to be surveyed). The BLM downloaded the resulting data into a database for integration with biological data regarding the desert tortoise, as well as population data. AR 201832, 201841. The BLM further divided the surveyed redesign sub-regions into Motorized Access Zones (“MAZs”) which possessed similar “issues” and “goals” as defined by the BLM. AR 211396-211403. The “issues” include some mentioning of biological resources other than the desert tortoise. See, e.g., AR 211399 (“location of very rare Kern buckwheat.”). Under “goals,” almost every MAZ lists the elimination of redundant routes, several list “minimize land-use conflicts,” and three MAZs cite 43 C.F.R. § 8342.1 specifically. The BLM redesign teams used maps of each MAZ, which contained information about “biology polygons” and “disturbance polygons.” AR 201841. The biology and disturbance polygons were limited to information obtained from desert wildlife management areas (“DWMAs”), and identified areas where tortoise sign was higher than average (the biology polygons), as well as areas where the amount of vehicle-related/dependent disturbance was greater than average (the disturbance polygons). Id. The BLM then applied a “Decision Tree” to all of the 5200 routes identified in the redesign areas to determine which routes should be designated “open” and which should be closed. The Decision Tree is the focus of plaintiffs’ FLPMA claims, and is discussed in greater detail infra. For the non-redesign areas, the record contains much less information about the process used to evaluate OHV routes. The 2003 EA states: Revision of 1985-87 and ACEC Off Road Vehicle Designations: Those portions of the existing motorized vehicle access network that were not included in the 2002 route designations were reviewed to ensure that they were compatible with the conservation strategy being developed by the West Mojave Plan and were in compliance with federal regulations (specifically, 43 C.F.R. § 8342). In some cases, minor adjustments were necessary, based upon available new information (resource, law enforcement, land use or recreation concerns). This arose, in part, due to the comparatively incomplete nature of the field survey conducted for the 1985-87 network, which lacked modern GPS equipment (not in existence in the mid-1980s) and which did not include most technical 4WD and motorcycle routes. AR 211405. The 2003 EA provides five specific examples of how route information was updated in different regions. AR 211405-211406. The 2005 FEIS contains an almost identical description of how OHV routes in “Public Lands Not Included in Redesign Area” were evaluated, and provides the same five examples. AR 201842-201843. In March 2003, the BLM released the Western Mojave Desert Off Road Vehicle Designation Project Environmental Assessment and Draft CDCA Plan Amendment for public review. AR 211373-211726. This document, the “2003 EA,” addressed the route network developed through the Decision Tree process, as well as the routes designated in the non-redesign areas. On June 30, 2003, FWS issued a “biological opinion that the network of routes of travel proposed by the Bureau is not likely to jeopardize the continued existence of the desert tortoise or the Lane Mountain milk-vetch or to destroy or adversely modify critical habitat of the desert tortoise.” AR 206749. The BLM then executed the 2003 ROD. AR 206756-206777. 5. Center for Biological Diversity v. BLM (“CBD I”), C No. 00-927 WHA (N.D.Cal.) and Center for Biological Diversity v. BLM (“CBDII”), C No. 03-2509 SI (NJD.Cal.), and adoption of the WEMO and NECO Plans On March 16, 2000, the Center for Biological Diversity, et al, filed suit against the BLM for its alleged failure to consult with FWS to address the CDCA Plan’s impact on the desert tortoise and other protected species. The court later approved a consent decree with five stipulated agreements and numerous interim measures. Under the consent decree, the BLM agreed to consult with FWS on, inter alia, the WEMO, NECO and NEMO Plan areas. The BLM also agreed to restrict cattle and sheep grazing in desert grazing allotments until a decision on the plan amendments, and to defer final route designation and maintain the existing emergency route closure in the Ord Mountain area until it completed the WEMO Plan, when the interim measures would expire. In May 2002, the BLM published a Revised Notice of Intent to Prepare West Mojave Plan and Environmental Impact Statement, AR 214296-214297, and held public scoping meetings. AR 201668. On June 13, 2003, the BLM released the Proposed West Mojave Draft Environmental Impact Report and Statement (“DEIS”) for public review. AR 207756-210195. In January 2005, the BLM published the FEIS. AR 201625-205379. On January 9, 2006, FWS issued a BiOp concluding that implementation of the WEMO Plan was not likely to jeopardize the desert tortoise or adversely modify desert tortoise critical habitat. WBO 14752-14949. In March 2006, the BLM issued the 2006 ROD to adopt the WEMO Plan to amend the CDCA Plan. AR 200044-200066. In February 2001, the BLM issued a combined Proposed California Desert Conservation Area Plan Amendment for the Northern and Eastern Colorado Desert Coordinated Management Plan (“NECO Plan”), and a DEIS for the proposed plan. On June 17, 2002, FWS issued a BiOp regarding the impact of the NECO Plan. The BiOp concluded that the NECO Plan was not likely to jeopardize the continued existence of the desert tortoise and was not likely to destroy or adversely modify designated critical habitat of the desert tortoise. On May 27, 2003, Center for Biological Diversity et al., filed a lawsuit against BLM and FWS challenging the June 17, 2002 BiOp, Center for Biological Diversity v. BLM (CBD II), C No. 03-2509 SI (N.D.Cal.). In 2004, the court held that FWS had relied on an invalid regulatory definition of “adverse modification” when analyzing effects to designated desert tortoise critical habitat in the June 17, 2002 BiOp. The BiOp was vacated and remanded to FWS with instructions to reissue the BiOp after applying the appropriate definition of adverse modification. On March 31, 2005, FWS issued a new BiOp analyzing the impacts of the CDCA Plan, and the NEMO and NECO Plan amendments on the desert tortoise. It is this March 31, 2005 BiOp, along with the January 9, 2006 BiOp issued by FWS for the WEMO Plan amendment, that are challenged in this lawsuit in connection with plaintiffs’ ESA claims. B. The desert tortoise and the Lane Mountain milk-vetch The desert tortoise (Gopherus agassizii) is a large, herbivorous reptile, with adults measuring up to 15 inches in shell length and found in portions of the western United States and Mexico. The Mojave population of the desert tortoise was listed as a threatened species in 1990. See Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for the Mojave Population of the Desert Tortoise, 55 Fed.Reg. 12,178 (Apr. 2, 1990). On February 8, 1994, FWS published a final designation of critical habitat for the Mojave population of the desert tortoise. Endangered and Threatened Wildlife and Plants; Determination of Critical Habitat for the Mojave Population of the Desert Tortoise, 59 Fed.Reg. 5820 (Feb. 8, 1994); NBO 900-47. FWS identified 12 areas, encompassing a total of 6.5 million acres, as critical habitat. NBO 908. Eight units totaling 4.8 million acres were designated in California; the rest are located in Nevada, Utah, and Arizona. Id. In June 1994, FWS finalized the Recovery Plan for the Mojave population of the desert tortoise, which describes a strategy for recovering and delisting the desert tortoise. NBO 546-899. The Recovery Plan divides the range of the Mojave population of the desert tortoise into 6 recovery units and recommends that land management agencies establish 14 DWMAs throughout the recovery units, with at least one DWMA in each recovery unit. NBO 582, 596, 598. The Recovery Plan also identifies activities which directly or indirectly threaten the desert tortoise and its habitat, such as domestic livestock grazing and OHV use. NBO 700-42. The Recovery Plan generally recommends that grazing not be permitted in DWMAs because no data exist to show that cattle grazing can be compatible with desert tortoise recovery. NBO 618. The Recovery Plan also recommends establishing vehicular controls and notes that the “recommendations are presented to aid land managers in the development of management plans,” such as the ÑECO and WEMO Plans, as “DWMA-specific management plans cannot yet be precisely defined.” NBO 606. The Lane Mountain milk-vetch (Astragalus jaegerianus) (“LMMV”) is a slender light-gray or greenish perennial plant species in the pea family which grows 12 to 27.5 inches tall. WBO 14911-12 (describing biology and ecology of the LMMV). The LMMV is known only from four occurrences and “does not appear to have been more widespread than is currently known; no extirpations of populations have been documented.” WBO 14913, 14916 (discussing occurrences and distribution of LMMV). The LMMV was listed as an endangered species on October 6, 1998. 63 Fed.Reg. 53596. In the final critical habitat rule published on April 8, 2005, FWS did not designate critical habitat for the species. Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Astragalus jaegerianus (Lane Mountain milk-vetch), 70 Fed.Reg. 18,220 (Apr. 8, 2005). The occurrences of LMMV in the WEMO planning area are entirely within areas designated as critical habitat for the desert tortoise. WBO 4915-16. On January 9, 2006, FWS issued a BiOp concluding that implementation of the CDCA Plan, as amended by previous amendments and the proposed WEMO bioregional plan, was not likely to jeopardize the LMMV. WBO 14921-22. Plaintiffs challenge that “no jeopardy” finding. III. Procedural background This lawsuit was filed on August 14, 2006. By order filed January 11, 2007, 2007 WL 101705, the Court granted a motion by Kern County, San Bernadino County, Imperial County, and the Quadstate County Government Coalition to intervene with full party rights with regard to liability and remedial matters. In addition, by order filed January 4, 2007, the Court approved a stipulation by all parties to allow various OHV interest groups to intervene with full party rights as to remedy issues, and as amicus curiae with respect to liability. On February 7, 2008, plaintiffs filed a second amended complaint for declaratory and injunctive relief. The parties filed cross-motions for summary judgment, and on May 16, 2008 the Court held a hearing on the motions. On August 12, 2008, the Court directed the parties to file revised cross-motions that incorporated two Ninth Circuit decisions issued after the May 16, 2008 hearing, Lands Council v. McNair, 537 F.3d 981 (9th Cir.2008) (en banc), and Oregon Natural Desert Ass’n v. Bureau of Land Management (ONDA), 531 F.3d 1114 (9th Cir.2008). LEGAL STANDARDS I. Summary judgment Summary adjudication is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In a motion for summary judgment, “[if] the moving party for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrate the absence of any genuine issues of material fact, the burden of production then shifts so that the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial.” See T.W. Elec. Service, Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In judging evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, and draws all inferences in the light most favorable to the non-moving party. See T.W. Electric, 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)); Ting v. United States, 927 F.2d 1504, 1509 (9th Cir.1991). The evidence presented by the parties must be admissible. See Fed.R.Civ.P. 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir.1979). II. Review of administrative action Judicial review of final agency actions is governed by the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. See Pyramid Lake Paiute Tribe of Indians v. U.S. Dep’t of the Navy, 898 F.2d 1410, 1413 (9th Cir.1990). The court “shall” set aside any agency decision that the Court finds is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The APA precludes the trial court reviewing an agency action from considering any evidence outside of the administrative record available to the agency at the time of the challenged decision. See 5 U.S.C. § 706(2)(E); Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985); Havasupai Tribe v. Robertson, 943 F.2d 32, 34 (9th Cir.1991). The Court must determine whether the agency 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, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The Supreme Court has explained that an agency action is 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 v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Although the arbitrary and capricious standard “is narrow and presumes the agency action is valid, ... it does not shield agency action from a ‘thorough, probing, in-depth review.’ ” Northern Spotted Owl v. Model, 716 F.Supp. 479, 481-82 (W.D.Wash.1988) (citations omitted). The Court cannot, however, substitute its judgment for that of the agency or merely determine that it would have decided an issue differently. See Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 377, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). DISCUSSION I. Federal Land Policy and Management Act claims Plaintiffs challenge the OHV route designations in the WEMO Plan on three grounds. First, plaintiffs contend that the Decision Tree process failed to consider the “minimization criteria” contained in 43 C.F.R. § 8342.1, and further that there is no information or documentation in the administrative record regarding application of that criteria to the Decision Tree routes. Second, plaintiffs contend that there is nothing in the administrative record to show that BLM’s designation of OHV routes outside of the redesign areas complied with 43 C.F.R. § 8342.1. Third, plaintiffs contend that the BLM’s designation of all new OHV routes after 1980 are arbitrary and capricious because those routes were not “existing routes” in 1980 as required by the language of the CDCA Plan. A. The Decision Tree routes Plaintiffs contend that the Decision Tree OHV route designation process is fatally flawed because it did not explicitly consider the minimization criteria contained in 43 C.F.R. § 8342.1. 43 C.F.R. § 8342.1 provides: The authorized officer shall designate all public lands as either open, limited, or closed to off-road vehicles. All designations shall be based on the protection of the resources of the public lands, the promotion of the safety of all the users of the public lands, and the minimization of conflicts among various uses of the public lands; and in accordance with the following criteria: (a) Areas and trails shall be located to minimize damage, to soil, watershed, vegetation, air, or other resources of the public lands, and to prevent impairment of wilderness suitability. (b) Areas and trails shall be located to minimize harassment of wildlife or significant disruption of wildlife habitats. Special attention will be given to protect endangered or threatened species and their habitats. (c) Areas and trails shall be located to minimize conflicts between off-road vehicle use and other existing or proposed recreational uses of the same or neighboring public lands, and to ensure the compatibility of such uses with existing conditions in populated areas, taking into account noise and other factors. (d) Areas and trails shall not be located in officially designated wilderness areas or primitive areas. Areas and trails shall be located in natural areas only if the authorized officer determines that off-road vehicle use in such locations will not adversely affect their natural, esthetic, scenic, or other values for which such areas are established. 43 C.F.R. § 8342.1(a)-(d). The Decision Tree begins by asking “Is the route a commercial right-of-way, officially recognized or maintained or [sic-to?] serve as a regional route that serves more than on[e] sub-region or represents a principal means of connectivity within a sub-region?” AR 211559. Based on the answer to this question, the reviewer proceeds down the tree, answering further questions such as “Is route closure likely to lead to increased conservation of sensitive species?” and “Are the commercial or private uses of this route adequately met by another route(s) that avoid or minimize the impact to occupied habitat of sensitive species?” Id. At the end of the process, the Decision Tree assigns each route a code which allows a reviewer to determine the path down the Tree, ie., the answers to each question presented in the Tree. AR 211585. Appendix C to the 2003 EA lists each route designated using the Decision Tree, its location, its code assigned by the Decision Tree questions, and the reasons for the recommendation of open or closed. AR 211584-211725. The Decision Tree is reproduced in full below: The Decision Tree also includes notes which identify “other concerns need to be taken into consideration as question is answered”: foot-that each West Mojave Tree Route Designation Footnotes 1. Question 2: account: Evaluate and take into • both season and intensity of use as it relates to impacts to sensitive species or their habitat; • the number of sensitive species and/or the amount of sensitive habitat potentially impacted; • Other areas already designated or set aside or other measures that may be already contributing to the conservation of these species (e.g. Wilderness Areas and raptor nests, bat grates, etc.) 2. Question 3: (E.g. utility, military mining, ranching facilities; monitoring sites; guzzlers) 3. Questions 8, 10: I.e. Would this route closure likely lead to a reduction of those indirect impacts suspected of leading to a significant decline in habitat quality (e.g. litter, poaching, harassment, plinking, etc.) or lead to a decline in impacts that directly negatively impact sensitive species? 4. Questions 11, 13, 15, 16: When evaluating the duplicity of this route take into consideration the quality of this route, particularly as it relates to public safety. 5. *1: • Are there any other special circumstances that would warrant reconsideration? (e.g. unusual public safety issues, Section 106 considerations, current or future community growth/zoning issues, current or reasonably foreseeable land acquisitions or trades (e.g. for mitigation as part of this planning effort or by other resource organizations/agencies), special permits (e.g. Mining Plan of Operations), environmental benefits of a route (e.g. facilitating the maintenance of a guzzler), legal easements, user conflicts, neighboring uses, etc.). • Should a limited designation be used in lieu of either an open or closed designation in order to mitigate for impacts? AR 211560. Plaintiffs contend that the Decision Tree method used to designate routes inside the redesign area does not comply with 43 C.F.R. § 8342.1 because it does not address a route’s minimization of damage to soil, watersheds, vegetation, air or other resources, such as cultural resources; does not consider minimization of conflicts between OHV uses and compatibility with existing populated areas; does not mention “noise” anywhere; and does not ask if routes dead-end into private land or otherwise lead to circumstances where conflicts with private landowners might arise. Plaintiffs also contend that the sequence of questions in the Decision Tree improperly prefers motorized vehicle access over any other resource. The issue here is very similar to the one considered by then-District Court Judge Tashima in American Motorcyclist Association v. Watt, 543 F.Supp. 789 (C.D.Cal.1982). Watt involved a challenge to the following OHV route designation criteria contained the CDCA Plan: “(1) Is the route new or existing? (2) Does the route provide access for resource use or enjoyment? (3) Are there alternate access opportunities? (4) Does the route cause considerable adverse impacts? (5) Are there alternate access routes which do not cause considerable adverse impacts?” Id. at 797. The court found that these criteria were “presented in such a manner so as to appear to be the exclusive standard pursuant to which route designation decisions are to be made,” did not explicitly prohibit route designation in any defined situation, and thus “would permit agency officials to make route designations without the minimization of environmental impacts and conflicts between uses expressly required by 43 C.F.R. § 8342.1.” Id. Defendants contend that Watt must be “viewed in light of’ Sierra Club v. Clark (Sierra I), 756 F.2d 686 (9th Cir.1985), and Sierra Club v. Clark (Sierra II), 774 F.2d 1406 (9th Cir.1985). In Sierra I, the plaintiffs sought review of the BLM’s failure to close a portion of the CDCA previously designated as open to unrestricted OHV use. 756 F.2d at 688. The plaintiffs relied on 43 C.F.R. § 8341.2, which states that “where the authorizing officer determines that off-road vehicles are causing or will cause considerable adverse effects ... the authorized officer shall immediately close the areas or trails affected.” 43 C.F.R. § 8341.2(a). The plaintiffs argued that the regulation’s use of “shall” required the agency to close all routes for which “considerable adverse effects” were found. The Ninth Circuit determined that the plaintiffs’ interpretation would inevitably result in the total prohibition of OHV use because there was no dispute as to the extent of damage caused by OHV use. Sierra, 756 F.2d at 690-91. The court rejected the plaintiffs’ argument that the Secretary was required to close any area damaged by OHV use: “However appealing might be such a resolution of the environmental dilemma, Congress has found that OHV use, damaging as it may be, is to be provided Vhere appropriate.’ It left determination of appropriateness largely up to the Secretary in an area of sharp conflict.” Id. at 691 (quoting FLPMA, 43 U.S.C. § 1781(a)(4)). Defendants contend that under Sierra I, the BLM retains broad discretion to designate OHV routes anywhere it deems “appropriate.” However, Sierra I addressed the Secretary’s discretion to dose areas previously designated as open to OHV use, and the court simply rejected an interpretation of 43 C.F.R. § 8341.2(a) that would contradict FLPMA. Sierra I did not change the mandated minimization criteria that must be applied during route designation. Id. at 690 (“the closure standard of the Executive Orders and the Regulation [43 C.F.R. 8341.2(a) ] applies independently of the designation of the land as open under the Act [FLPMA]”). In Sierra II, the Ninth Circuit reviewed the BLM’s decision to open a race course extending from Barstow to Las Vegas pursuant to an amendment to the CDCA and purportedly in compliance with the minimization criteria of 43 C.F.R. § 8342.1. 774 F.2d at 1409-10. The amendment was issued in response to what had become a regular occurrence of “protest rides,” which, if not controlled, would have produced even greater harm. Id. The Ninth Circuit found that the amendment was a proper exercise of BLM discretion because it included mitigation requirements which sought to assure the “minimization” of impacts from the race. Id. Neither Sierra I nor Sierra II altered the regulatory mandate that all OHV route designations within the CDCA must meet the minimization criteria of 43 C.F.R. § 8342.1. If anything, Sierra II confirmed this fact, notwithstanding the Ninth Circuit’s description of Congressional intent in Sierra I. Likewise, neither case overruled the holding in Watt as it applied to the designation process in that case. Thus, the Court must still determine whether the designation process here complies with the criteria laid out in 43 C.F.R. § 8342.1. The BLM’s Decision Record CDCA Plan Amendment Western Mojave Desert Off Road Vehicle Designation Project, AR 206756-206777, which amended the CDCA Plan to include the OHV route network developed through the Designation Project, states that “the questions that comprise the ‘branches’ in the Decision Tree were based upon statutory requirements concerning resource protection, the provision of commercial and recreational access, and criteria set forth in the CDCA.” AR 206773. However, the Decision Tree itself does not reference 43 C.F.R. § 8342.1 or the particular factors cited therein. The only resource-related questions in the Decision Tree concern sensitive species and sensitive species’ habitat, and several questions indirectly ask about soil erosion (“Does this route contribute to recreational opportunities, dispersed use (i.e. thereby reducing impacts, e.g. soil erosion), connectivity, public safety, etc.?” AR 211559. Just as in Watt, considering only the questions asked by the Decision Tree would permit the BLM to designate routes open “without the minimization of environmental impacts and conflicts between uses expressly required by 43 C.F.R. § 8342.1.” Watt, 543 F.Supp. at 797. For example, consider those routes designated “open” using the Decision Tree code SO-3. Any route so designated has the following properties: (1) Is the route a commercial right-of-way, officially recognized or maintained or serve as a regional route that serves more than on[e] sub-region or represents a principal means of connectivity within a sub-region? Answer: NO (2) Does the route provide commercial, administrative or private land access? Answer: NO (3) Is the route closure likely to lead to increased conservation of sensitive species? Answer: NO (4) Would this route closure mitigate other cumulative habitat impacts and/or help maintain more/larger contiguous blocks of habitat which might aid in the recovery of sensitive species? Answer: NO AR 211559. Thus, routes designated as “SO-3” open routes have been evaluated for their impact on sensitive species and their habitat; however, even that consideration is not necessarily equivalent to determining whether an OHV route is located “to minimize harassment of wildlife or significant disruption of wildlife habitats.” 43 C.F.R. § 8342.1(b). More importantly, even assuming that the Decision Tree’s consideration of impacts on species and their habitat did comply with § 8342.1, the Decision Tree is still deficient because the minimization criteria apply to more than just conservation of sensitive species and habitat. 43 C.F.R. § 8342.1(a) requires the minimization of damage to “soil, watershed, vegetation, air, or other resources of public land.” None of these resources are addressed by the questions posed above for “SO-3” open routes (and numerous other branches leading to other designated open routes), and yet the Decision Tree determines such routes should be opened based on these questions alone. Conversely, and equally problematic, a route cannot be closed using the Decision Tree, regardless of the level of impact on sensitive species or potential to mitigate cumulative effects, unless it either: (a) does not contribute to recreational opportunities, dispersed use (i.e. thereby reducing impacts, e.g. soil erosion), connectivity, public safety, etc. (SC-1, SC-3, SC-5); or (b) makes such a contribution, or provides some other commercial or private use, but is redundant with other routes that provide the same opportunity or use (SC-2, SC-4, SC-6, SC-7). Id Routes designated as “SO-4” open routes are instructive. To reach the SO-4 designation, one must take the following path down the Decision Tree: (1) Is the route a commercial right-of-way, officially recognized or maintained or serve as a regional route that serves more than one region or represents a principal means of connectivity within a sub-region? Answer: YES (2) Does the route provide commercial, administrative, or private land access? Answer: YES (3) Is route closure likely to lead to increased conservation of sensitive species? Answer: YES (4) Does most of the route impact occupied habitat of sensitive species? Answer: YES (5)Are the commercial or private uses of this route adequately met by another route(s) that avoid or minimize the impact to occupied habitat of sensitive species? Answer: NO After answering all of these questions, a route is designated as open to OHV use, and assigned the “SO-4” code. AR 211559. Thus, although “most” of a SO-4 route impacts occupied habitat of a sensitive species, and route closure is likely to lead to increased conservation of sensitive species, because the commercial or private uses of the route are not “adequately met by another route that avoids or minimizes the impact to occupied habitat of sensitive species,” the route is designated open. There is nothing on the face of the Decision Tree to reflect that routes designated as SO--4 comply with § 8342.1’s requirement that routes “shall be located to minimize harassment of wildlife or significant disruption of wildlife habitats.” 43 C.F.R. § 8342.1(b). Indeed, as with the flawed OHV route designation criteria in Watt, the Decision Tree questions “would permit agency officials to make route designations without the minimization of environmental impacts and conflicts between uses expressly required by 43 C.F.R. § 8342.1,” and “in practice is almost certain to skew route designation decision-making in favor of ORV use.” Watt, 543 F.Supp. at 797. Defendants contend that the Decision Tree only produced a recommendation that was later evaluated in light of the minimization criteria in 43 C.F.R. § 8342.1, and that taken as a whole, the process adequately addressed and considered all the required factors. In other words, defendants argue that the Decision Tree questions were not the “exclusive standard to which route designations were made” like the route designation questions in Watt. To support this position, defendants cite four general pieces of the record: (1) the stated goals for the overall route designation project, (2) the stated goals and issues identified for each MAZ, (3) the footnotes that were part of the Decision Tree itself, and (4) the Route Designation Forms that were completed for each route. The stated goals for the overall route designation project are set forth in the March 2003 EA. They include a table of authorities which must be complied with during the process, including NEPA, FLPMA and 43 C.F.R. § 8342.1. AR 211391-92. The goals also indicate a desire to utilize a process which concerns a “variety of data, including biological, cultural, and recreational resources.” AR 211390. Likewise, the issues and goals for each MAZ express, at least in some cases, an acknowledgment of concerns relevant to the minimization criteria of 43 C.F.R. § 8342.1. However, the stated goals for the overall project and for each MAZ do not explain how they would be achieved, and simply citing stated goals is not tantamount to showing that the BLM actually applied the minimization criteria in the OHV route designation process. As Judge Tashima observed in Watt, references in the record that “the BLM did not intend nor was authorized to designate routes not in conjunction with 43 C.F.R. § 8342.1 are not sufficient to counteract the impression that [the challenged route designation] criteria are the exclusive bases for route approval decisions.” Watt, 543 F.Supp. at 797. Defendants describe the footnotes to the Decision Tree as a “critical” part of the process. At the end of each Decision Tree branch (both routes designated open as well as closed), the reviewer is directed to the route code (e.g., “SO-4”), and footnote “*1”. AR 211559. Footnote *1 states: • Are there any other special circumstances that would warrant reconsideration? (e.g. unusual public safety issues, Section 106 considerations, current or future community growth/zoning issues, current or reasonably foreseeable land acquisitions or trades (e.g. for mitigation as part of this planning effort or by other resource organizations/agencies), special permits (e.g. Mining Plan of Operations), environmental benefits of a route (e.g. facilitating the maintenance of a guzzler), legal easements, user conflicts, neighboring uses, etc.). • Should a limited designation be used in lieu of either an open or closed designation in order to mitigate for impacts? AR 211560. The BLM argues that reviewers considered § 8342.1 criteria in connection with assessing whether there were “special circumstances that would warrant reconsideration.” There are several problems with this assertion. First, footnote *1 does not reference the criteria set forth in 43 C.F.R. § 8342.1, such as “minimizing] damage to soil, watershed, vegetation, air, or other resources of the public lands.” 43 C.F.R. § 8342.1(a). Although the footnote mentions “user conflicts,” that reference is not equivalent to directing reviewers to locate trails “to minimize conflicts between off-road vehicle use and other existing or proposed recreational uses of the same or neighboring public lands, and to ensure the compatibility of such uses with existing conditions in populated areas, taking into account noise and other factors.” Id. § 8342.1(c). Moreover, even if the BLM did determine that “special circumstances” based on the § 8342.1 minimization criteria warranted reconsideration and routes were changed from the “open” designation to a “closed” one, it is impossible to determine that from the administrative record. Every Decision Tree route has a corresponding route designation form. See, e.g., AR 214896-214955. The forms contain a recommendation based on the Decision Tree, as well as additional specific information concerning the route in question; this information was later incorporated into Appendix C of the 2003 EA. See AR 214896-214955 (route designation forms), 211700-211703 (corresponding records in Appendix C). A review of these forms demonstrates that the information included in the “specific comments/special circumstances” section virtually never includes any mention of anything outside of recreational values and occasional references to species prevalence and type of habitat: all items already addressed by the questions in the Decision Tree itself. See, e.g., AR 211910 (SC-4 closed route: “Redundant parallel route, Not expanding recreation opportunity”), 211911 (SO-5 open route: “Good dirt, connective route”), 211922 (SO-5 open route: “Good dirt, Jeep route serving recreation”). Each form also includes a verbatim recitation of 43 C.F.R. § 8342.1 directly above the final signature line for the “Field Manager.” Id. However, there is no indication on the forms themselves that these criteria have actually been considered or applied. See id. Here, nothing in the record documents that anything other than the Decision Tree questions and the route-type and recreation data collected during the on-the-ground surveys determined the designation of routes. Defendants repeatedly emphasize the extensive route surveys and information gathering process leading up to the application of the Decision Tree. The Court recognizes that the BLM expended considerable effort in surveying and inventorying OHV routes. However, there is nothing in the record to show that the minimization criteria were in fact applied when OHV routes were designated. To the extent that the Decision Tree footnotes and route designation forms truly were “critical,” BLM failed to adequately explain and document how and when they entered the decision process. Moreover, there are suggestions in the record