Theodore Roosevelt Conservation Partnership v. Kempthorne ( 2010 )

UNITED STATES DISTRICT COURT
FoR THE DISTRICT oF c0LUMB1A F 1 |_ E D
THEoDoRE ROoSEVELT ) SEP 29 mm
CGNSERVATIGN PARTNERSHIP, ) cum u.s. alma & aank¢upwy
) Courts for the Dlstrict 01 Co|umb|a
Plainriff, )
)
v. ) civil case No. 03-1047 (RJL)
)
KEN SALAZAR‘, ex al., )
)
Defendants. )
MEM_0RAN1)UM oP1N1oN
(s@premb@r Q§f 2010) [#23, #27, #29, #37]
Plaintiff Theodore Roosevelt Conservation Partnership ("plaintiff" or "TRCP"), a
nonprofit corporation dedicated to preserving hunting and f``ishing, filed this action
pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq., against
defendants Ken Salazar, Secretary of the United States Department of the Interior, and
the United States Bureau of Land Management ("BLM") (collectively, "federal
defendants"), seeking declaratory and injunctive relief regarding the BLM’s oil and gas
operations in the Pinedale Anticline Project Area ("PAPA") in western Wyoming.
Defendant-intervenors Questar Market Resources, Inc., SWEPI LP, and Ultra Resources,
Inc. (collectively, "defendant-intervenors"), are natural gas producers that own and
l The Court has substituted Ken Salazar, the current Secretary of the Interior, for the
former Secretary, Dirk Kempthorne, as a defendant in this case pursuant to Rule 25(d) of
the Federal Rules of Civil Procedure.
operate federal leases in the PAPA. They intervened in this action shortly after the filing
of the amended complaint.
Now before the Court are TRCP’s motion for summary judgment and the
defendants’ cross-motions for summary judgment. After careful consideration of the
pleadings, the relevant law, oral arguments of counsel, and the entire record, the Court
hereby GRANTS the defendants’ cross-motions for summary judgment and DENIES the
plaintiffs motion for summary judgment.
BACKGROUND
The PAPA consists of approximately l98,000 acres of federal, state, and private
land in western Wyoming. AR 31 l35. Approximately 80% of the PAPA is administered
by the BLM. Ia’. All but approximately 5,000 acres of the federal minerals in the PAPA
have been leased to oil and gas companies ("Operators"), some of whom are defendant-
intervenors in this case. AR O640l. Few of those leases contain a no surface occupancy
stipulation. Id. Though the presence of natural gas had previously been confirmed in the
PAPA as early as 1939, it was not until the late l990s that advances in drilling
technology allowed extraction in commercial quantities. AR 06536. Today, the PAPA is
estimated to be the third-largest natural gas field in the nation, and to be capable of
producing 25 trillion cubic feet of natural gas-enough to heat 10 million homes for 30
years. AR 48904; AR 28196; Tr. Oral Arg. (June 4, 2010) ("Tr. Oral Arg.") l8:l4-l6.
In 1988, the BLM prepared a Resource Management Plan ("RMP") for the region
that governed operations in the PAPA. AR 50954-5 lO77. In May 1998, the BLM
authorized exploratory drilling of 14 drill pads in the PAPA, and announced plans to
2
initiate a comprehensive environmental analysis that summer. AR 007 33. The results of
the analysis, which assessed the potential impacts of increased natural gas drilling,
including not only the wells but the associated access roads, pipelines, and facilities, were
finalized in 2000 in the BLM’s Draf``t and Final Environmental Impact Statements
("EIS"). AR 06394-06989; AR 06049-06392. In July 2000, the BLM issued its Record
of Decision ("ROD") approving the PAPA Operators’ proposal for the construction of
700 producing well pads in the PAPA over the following 10 to 15 years, but imposing
general seasonal restrictions on development. AR 05797-06048.
Both the EIS and the ROD noted that significant uncertainty surrounded
development of the PAPA. AR 06423-25; AR 05817; AR 05968. Accordingly, the 2000
ROD also called for a monitoring and mitigation process known as Adaptive
Environmental Management ("AEM"). AR 05817-18. AEM was to be run by a body
known as the Pinedale Anticline Working Group ("PAWG"), which would oversee Task
Groups designated by subject matter (e.g., wildlife, water resources, air quality, etc.).
See, e.g. , AR 05 970. Due to an unrelated lawsuit, however, the PAWG did not officially
convene until May 2004. AR 25304. The parties disagree as to whether AEM was ever
perforrned.
After the approval of the 2000 ROD, as more resources were discovered in the
PAPA and as extraction technology continued to improve, the BLM authorized a series of
exceptions to the seasonal drilling requirements at the request of one of the Operators.
AR 49026; AR 094l5. In 2005, the Operators proposed a new long-term development
plan that provided for the drilling of 4,399 additional wells and elimination of the
3
seasonal restrictions. AR 49027. In response, the BLM prepared and issued a Draf``t
Supplemental EIS ("DEIS") in December 2006, analyzing three alternatives. See AR
l9978-2l396. Alternative A, the "no action" alternative, assumed no changes in
management from the 2000 ROD. AR 20008. Alternative B, the Proposed Action
alternative, included year-round drilling in specified areas and completion of up to 4,399
additional wells. Ia’. Altemative C, the preferred alternative, was similar to Alternative
B, but instead of designating where year-round drilling could occur, it specified where
year-round drilling could not occur, and included a smaller core area than Alternative B.
Id.; AR 200054. Af``ter receiving public and agency comments, the BLM issued a
Revised Draft SEIS in December 2007, adding two additional alternatives, including a
reduced-pace alternative (Alternative E) and a new preferred altemative. See AR 2l397-
22 l4l. The new preferred alternative, Alternative D, was similar to Alternatives B and C
in that it provided for development of 4,399 additional wells and lifted seasonal
restrictions, but contained a larger core made up of five development areas, a five-year
voluntary lease suspension by the Operators in a flank area surrounding the core, and
other additional mitigation measures. AR 2l458-68.
A Final SEIS was issued on June 27, 2008. See AR 48982-49757. In September
2008, a new ROD ("2008 ROD") superseding the 2000 ROD was issued adopting
Alternative D. AR 31 128-3 l2l7. In November 2008, the BLM also issued a revised
RMP ("2008 RMP") for the Pinedale Area that replaced the 1988 Pinedale Rl\/IP. Notice
of Availability of Record of Decision for the Pinedale Resource Management
Plan/Environmental Impact Statement, 74 Fed. Reg. 828 (Jan. 8, 2009).
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TRCP filed this suit on June l8, 2008, prior to the issuance of the 2008 Final
SEIS, 2008 ROD, and 2008 RMP. lt amended its complaint on October 20, 2008 to
include claims pertaining to both the 2000 ROD and 2008 SEIS and ROD. Specifically,
TRCP alleges violations of the National Environmental Policy Act of 1969 ("NEPA"), 42
U.S.C. §§ 4321 et seq., and the Federal Land Policy and Management Act of 1976
("FLMPA"), 43 U.S.C. §§ l70l et seq. and seeks declaratory and injunctive relief under
the APA.
DISCUSSION
The parties’ cross motions for summary judgment are now before the Court, which
is appropriate in a case such as this, where this Court’s review is based entirely on the
administrative record. See Mineral Policy Ctr. v. Norton, 292 F. Supp. 2d 30, 36 (D.D.C.
2003). Of course, summary judgment will only be granted if one of the moving parties is
entitled to judgment as a matter of law and there are no genuine issues of material fact.
Fed. R. Civ. P. 56. Because neither NEPA nor FLPMA creates a private right of action,
review of agency compliance with those statutes is conducted under the APA. Theodore
Roosevelt Conservatz``on Partnership v. Salazar ("TRCP"), No. 09-5162, slip op. 12 (D.C.
Cir. July 23, 20l0). Under the APA, agency action can be set aside if it is "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. §
706(2)(A). "The scope of review under the ‘arbitrary and capricious’ standard is narrow
and a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs.
Ass ’n ofthe United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
F or the following reasons, I find that BLM’s decisions did not violate either NEPA or
FLPMA and thus cannot be set aside.
A. Standing
As a preliminary matter, l find that TRCP has organizational standing to pursue
this suit. An association has standing to bring suit on behalf of its members when its
members would have individual standing, the interests at stake are germane to the
organization’s purpose, and neither the claim nor the relief requested requires
participation of the organization’s individual members. Hunt v. Washz``ngton State Apple
Adver. Comm ’n, 432 U.S. 333, 343 (1977). Relying on Lujan, the federal defendants
argue that TRCP lacks standing because its member, Dr. Rollin Sparrowe, does not
identify in his declaration any specific plans to return to the PAPA in the future. Fed.
Defs.’ Cross-Mot. for Summ. J. ("Fed. Defs. Cross-Mot.") 19 (citing Lujan v. Defenders
of Wz'la’lzfe, 504 U.S. 555 (1992)). In Lujan, the plaintiffs, both United States citizens and
residents, intended to return to Egypt or Sri Lanka, where the injury would be suffered,
but did not know when or have plans to do so. Lujan, 504 U.S. at 563-64. However, in
this case, Dr. Sparrowe is a resident of Daniel, Wyoming, a town that is mere miles from
the land in question. See Am. Compl., Sparrowe First Decl. \ll, June ll, 2008, Not
surprisingly, Dr. Sparrowe has enjoyed wildlife viewing and hunting in the PAPA for
over a decade, and continues to do so to this day. Ia'. ‘1]20. Moreover, Dr. Sparrowe also
expresses his intention to continue to hunt and enjoy wildlife in the PAPA in the future,
provided hunting is permitted. Ia’. I find his expression of future intent to be sufficiently
reliable and concrete to support a finding of "actual or imminent" injury required for
standing. Lujcm, 504 U.S. at 560.2
B. 2008 ROD
1. BLM Did Not Violate the FLMPA.
a. BLM’s determination that "unnecessary or undue
degradation" would not occur is supported by the record.
The FLMPA directs the Secretary of the Interior to "take any action necessary to
prevent unnecessary or undue degradation of the [public] lands." 43 U.S.C. § l732(b).
TRCP argues that the 2008 ROD does not implement adequate mitigation measures
sufficient to prevent unnecessary or undue degradation, and thus challenges the BLM’s
determination that such degradation will not occur as arbitrary and capricious. See Tr.
Oral Arg. 12:3-5.
As a preliminary matter, the parties disagree as to what constitutes "unnecessary
or undue degradation" under the statute. Plaintiff and the federal defendants cite an
interpretation of the terms as used in the mining context, which define "unnecessary" as
"that which is not necessary for mining" (or, in this context, "for oil and gas
development") and "undue" as "that which is excessive, improper, immoderate or
unwarranted." See Fed. Defs. Cross-Mot. 34 (quoting Utah v. Ana’rus, 486 F. Supp. 995,
1005 n.l3 (D. Utah 1979)); Pl.’s Opp’n/Reply 31 n.l8. The federal defendants and
defendant-intervenors also rely on a decision from the Interior Board of Land Appeals
(IBLA), which has found that in the oil and gas context, a finding of unnecessary or
2 Ultimately, however, whether or not TRCP has standing does not affect the outcome of
this suit.
undue degradation requires a showing "that a lessee’s operations are or were conducted
in a manner that does not comply with applicable law or regulations, prudent
management and practice, or reasonably available technology, such that the lessee could
not undertake the action pursuant to a valid existing right." Def. Intvrs.’ Cross-Mot. for
Summ. J. ("Def.-lntvrs.’ Cross-Mot.") 19; Fed. Defs. Cross-Mot. 34 (both quoting
Colorado Env ’t Coalition, 165 IBLA 221, 229 (2005)).
Nevertheless, the plaintiff challenges the BLM’s determination that the following
practices would not lead to unnecessary or undue degradation as arbitrary and capricious:
(l) the removal of seasonal restrictions in the core; (2) continuance of a 0.25 mile buffer
around sage grouse breeding grounds (also known as "leks"); (3) plans for concentrated
development in the core area and voluntary lease suspension in the flanks; (4) creation of
the mitigation fund and means of subsequent funding; and (5) adoption of the mitigation
matrix. The plaintiff cites to specific comments in the record, relying heavily on the Fish
and Wildlife Service’s ("FWS") comment letter indicating that these practices may not
benefit wildlife and that the mitigation measures would not protect against environmental
decline. Pl.’s Opp’n/Reply 33-35 (citing, e.g., AR 10749, AR 51275-88, AR ll0l7, AR
lll06).
Even assuming that the lower standard of unnecessary or undue degradation from
the mining context applies in this situation, the BLM’s determination that such
degradation would not occur is supported by the record. Though plaintiff would prefer
stronger protection of wildlife, especially the sage grouse, the BLM’s responsibility
under the FLMPA is to ensure that public lands are managed "under principles of
8
multiple use and sustained yield." 43 U.S.C. § l732(a). "‘Multiple use management’ is a
deceptively simple term that describes the enormously complicated task of striking a
balance among the many competing uses to which land can be put, ‘including, but not
limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and [uses
serving] natural scenic, scientific and historical values."’ Norton v. S. Utah Wilderness
Allz``ance, 542 U.S. 55, 58 (2004) (alteration in original) (quoting 43 U.S.C. § l702(c)).
BLM’s second goal, sustainable yield, "requires BLM to control depleting uses over
time, so as to ensure a high level of valuable uses in the future." Io’. (citing 43 U.S.C.
§ l702(h)). Accordingly, the BLM was not required, under FLMPA, to adopt the
practices best suited to protecting wildlife, but instead to balance the protection of
wildlife with the nation’s immediate and long-term need for energy resources and the
lessees’ right to extract natural gas.3
The BLM recognized the need for increased development and thoroughly
examined the effects of lifting seasonal restrictions and concentrating activity as a means
of achieving it while at the same time offering protections to wildlife. lt evaluated the
potential benefits of its mitigation and monitoring plan, and the ways in which it could
decelerate the inevitable harms to wildlife associated with increased development. See
3 The Court recognizes, as it must, that the BLM has limited authority to impose
restrictions on the natural gas leases at issue. In particular, "[t]he BLM cannot dictate the
number of wells unless a limit is stipulated at the time the lease is issued. In this case, all
existing leases carry no such stipulation. The leaseholder has the legal right and
obligation to drill as many wells as necessary to extract the natural gas within their
lease." AR 28387; see also Sz'erra Club v. Peterson, 717 F.2d 1409, l4ll (D.C. Cir.
l983) ("On land leased without a No Surface Occupancy Stipulation the Department
cannot deny the permit to drill; it can only impose ‘reasonable’ conditions which are
designed to mitigate the environmental impacts of the drilling operations.").
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generally AR 494l9-2l (discussing Alternative D’s impact on wildlife). Alternative D
included several mitigation steps designed to decrease impact, such as a liquid gathering
system and centralized processing and storage; computer assisted remote monitoring of
producing wells; coordinating transportation routes and bussing of workers; provisions
for concentrating activity geographically and seasonally; and the creation of a monitoring
and mitigation fund dedicated to fund monitoring and on- and off-site mitigation (such as
acquiring conservation easements on land adjacent to the PAPA) as needed. AR 49596-
600; AR 49608-l3. The BLM evaluated the benefits of these enhanced mitigation
measures as reducing surface disturbance (including traffic and human activity), and
preserving "large contiguous undisturbed blocks of habitat and migration corridors." AR
49608. They also provided for earlier well pad reclamation and reduced air emissions.
Ia’.
lt is clear that the BLM’s determination that these provisions would prevent
unnecessary or undue degradation is supported by the record. See, e.g., AR 31 l40-47;
see also AR 28388 ("The drilling of multiple wells from a single pad, the consolidation
of production facilities, the use of existing roads wherever possible and other measures
are just some of the mitigation practices that reduce the impacts of drilling."). Indeed, the
Wyoming Game and Fish Department ("WGFD") supported the BLM’s decision to lift
the seasonal restrictions, noting that "[s]ince seasonal stipulations only provide protection
during a part of each year, intense development activities can continue to have impacts on
habitats during the rest of each year, and cumulative annual increases in those impacts
over a period of years will become significant," and that the BLM’s preferred alternative
10
served to mitigate those cumulate impacts. AR 28029. The WGFD also made several
other recommendations for the benefit of wildlife, which were adopted by the BLM. See
generally AR 28028-37 (recommending inclusion of, among other measures, directional
drilling, central gathering and processing, remote monitoring, bussing of crews, annual
monitoring, the provision of up-front funding for mitigation, and reclamation as benefits
to wildlife and habitats). Though the BLM may not have selected procedures and
methods best suited for the protection of wildlife, its determination that unnecessary or
undue degradation would not result from the measures it ultimately did select is not
arbitrary and capricious.
The 2008 ROD also committed the Operators and the BLM to a Wildlife
Monitoring and Mitigation Matrix implementing monitoring and sequential mitigation
measures. See AR 49601-06. In addition to monitoring, the mitigation measures provide
first for protection of the flank areas, habitat enhancements, and conservation easements
as a means of compensating for the impact to wildlife; and finally, for adjustments of the
special arrangement and/or pace of development to mitigate the cause of the impact. AR
49606; AR 49420-2 l. They are consistent with the BLM’s judgment that concentrated
activity in already-impacted zones would present the best compromise between natural
gas extraction and its attempts to stem, but not halt, the attendant impacts on wildlife. In
sum, though commentators, as well as TRCP, may have disagreed with BLM’s ultimate
determination, the 2008 SEIS and ROD support the BLM’s balancing of the need for
heightened natural gas production against foreseeable declines in wildlife, and its
ultimate determination that unnecessary or undue degradation would not occur.
ll
b. TRCP’s claims regarding violations of the 1988 RMP are
moot.
In its opening brief TRCP contends that by lifting the seasonal drilling restrictions,
the 2008 ROD expressly violates the 1988 RMP, which requires implementation of
seasonal restrictions to protect wildlife. The FLPMA prohibits BLM from taking actions
inconsistent with RMPs. 43 U.S.C. § l732(a); 43 C.F.R. § 16l0.5-3(a); see also S. Utah
Wilderness Alliance, 542 U.S. at 69.
Defendants argue that the 2008 ROD did not violate thel988 RMP, which allowed
for case-by-case exceptions to the seasonal restrictions requirement (AR 50967), and that
nevertheless, plaintiffs claim is moot due to the issuance of a new RMP in November
2008. See Notice of Availability of Record of Decisions for the Pinedale Resource
Management Plan/Environmental Impact Statement, 74 Fed. Reg. 828 (J'an. 8, 2009). I
agree. The BLM accounted for the issuance of the new RMP, which was already in draft
form, into its 2008 ROD (see, e.g., AR 31138; Tr. 23:24-24:3), and once the new RMP
was issued (subsequent to TRCP’s filing of the Amended Complaint), this claim became
moot. Moreover, plaintiff appears to have conceded these arguments by failing to
address them in its opposition/reply.
2. The BLM Did Not Violate NEPA.
Under NEPA, an agency must prepare an EIS examining the environmental impact
of a proposed action (and several alternatives) for every "major Federal action
significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(€).
"An EIS must be detailed, and it must be prepared in consultation with other federal
12
agencies with special expertise relevant to the proposed action’s environmental impact."
TRCP, No. 09-5162, slip op. at 3 (citing 42 U.S.C. § 43 32(2)(C)). Preparation of an EIS
"serves NEPA’s ‘action-forcing’ purpose" by ensuring that the agency considers
"detailed information concerning significant environmental impacts" and by
"guarantee[ing] that the relevant information will be made available to the larger
audience that may also play a role in both the decisionmaking process and the
implementation of that decision." Robertson v. Methow Valley Cz``tz``zens Council, 490
U.S. 332, 349 (1989). Accordingly, NEPA requires that an agency take a "hard look" at
the environmental consequences of the proposed course of action, Marsh v. Oregon
Natural Res. Councz``l, 490 U.S. 360, 374 (1989), and "consider every significant aspect of
the environmental impact of a proposed action," Baltimore Gas & Elec. Co. v. Natural
Res. Def. Council, Inc., 462 U.S. 87, 97 (1983) (quotation omitted).
However, "it is now well settled that NEPA itself does not mandate particular
results, but simply prescribes the necessary process." Robertson, 490 U.S. at 350.
Because "NEPA merely prohibits uniformed-rather than unwise-agency action," in
determining whether a NEPA violation occurred and the agency action is thus arbitrary
and capricious, the Court must not substitute its own judgment for that of the agency. Ia’.
at 35 l. lnstead, "the Court must ‘consider whether the decision was based on a
consideration of the relevant factors and whether there has been a clear error in
judgment."’ Biodiversz'ty Conservatz'on Allt'ance v. US. Bureau of Land Mgrnt., 404 F.
Supp. 2d 212, 216 (D.D.C. 2005) (quoting Cz'tz``zens to Preserve Overton Park v. Volpe,
13
401 U.S. 402, 415-16 (1971)). TRCP argues that the BLM violated NEPA because its
2008 SEIS was deficient in the following respects. I disagree.
a. BLM considered a "no action" alternative.
TRCP argues that the BLM failed to include a "no action" alternative in its 2008
SEIS as mandated under NEPA. 42 U.S.C. § 4332(2)(E); 40 C.F.R. § l502.l4(d). The
"no action" alternative is required because it serves as a benchmark against which the
other altematives can be evaluated. See CEQ Forty Most Asked Questions (Q. No. 3).
The 2008 SEIS included analysis of Alternative A, the "no action" alternative.
See, e.g., AR 49058-63. Alternative A assumed that the "BLM would continue to
manage natural gas development in the PAPA based on the provisions of the [2000 ROD]
and subsequent Decision Records." AR 49058. Plaintiff contends, however, that because
the BLM relied on an outdated figure estimating the number of producing wells in the
PAPA that underestimated the actual state of development, Alternative A did not
constitute a "no action" alternative. Pl.’s Mot. for Summ. J. ("Pl.’s Mot.")" 33-34.
However, the BLM did include the estimates of future well development in
Alternative A, thus accounting for the additional wells built in the time between its last
well count figure and the issuance of the 2008 SEIS. See AR 49062, Table 2.4-9
(estimating an additional 231 wells in 2007 and 235 wells in 2008); AR 49060 ("The No
Action Alternative, through 2011, includes an additional 1,139 producing wells.").
Altemative A thus presented a clear analysis of the impact of continuing with the then-
4 Plaintiff amended its summary judgment motion to include citations to the supplemental
administrative record on March 9, 2010 [#37]. All citations to plaintiffs motion are to
the amended version.
14
present course of action, Accordingly, Alternative A appropriately considered the
impacts of proceeding under the 2000 ROD, or taking "no action," as was required, and
TRCP’s claim on this ground must fail.
b. BLM considered a reasonable range of alternatives.
Additionally, TRCP contends that the BLM should have included an "alternative
that evaluated development in the PAPA in a manner originally contemplated under the
2000 ROD." Pl.’s Mot. 35. Because development in 2005 had already exceeded the pace
dictated by the 2000 ROD, TRCP argues, BLM was obligated to evaluate an alternative
that "scaled back" the pace of development. Not so.
Our Circuit Court has held that an agency "bears the responsibility for deciding
which altematives to consider in an environmental impact statement," and that its
decision must only follow the "rule of reason." Cz``tz``zens Agaz'nst Burlz``ngton, Inc. v.
Busey, 938 F.2d 190, 195 (D.C. Cir. 1991) (citations omitted). The selection of
altematives must be reasonable, as defined in relation to the objectives of a particular
action that the agency sets out. Ia’. at 195-96 (citing 40 C.F.R. §§ 1502.l4(a)-(c),
1508.25(b)(2)). Under the rule of reason standard, the Court will "uphold an agency’s
definition of objectives so long as the objectives that the agency chooses are reasonable,"
and its "discussion of alternatives so long as the altematives are reasonable and the
agency discusses them in reasonable detail." Ia’. at 196.
The BLM’s objective, in this case, was "to act upon the Proponents’ proposal to
revise the PAPA [2000] ROD to expand the level of development by drilling 4,399 new
producing wells and to relax seasonal restrictions in certain areas." AR 49027. The
15
BLM was not required to approve this proposal-indeed, the very purpose of the SEIS
was to evaluate the impacts of the proposal. Accordingly, the BLM analyzed five
alternative scenarios, which, other than the "no action" alternative, each implemented the
Proponents’ proposal at varying degrees. Alternative A extended current management
practices in the PAPA through 2011, including seasonal restrictions. Alternatives B, C,
and D included year-round development through 2025, but in different core areas, with
Alternatives C and D both having additional development areas. Alternative E assumed a
slower pace of development, with development occurring through 2033, and included the
seasonal restrictions but provided for additional well pads. See, e.g., AR 49047-50.
Given the decision the BLM faced-that is, whether or not to act upon the lease-holders’
proposal-it was reasonable to examine different ways in which that proposal could be
implemented compared against a baseline of no action. See, e.g., Kleppe v. Sz``erra Club,
427 U.S. 390, 410 n.20 (1976) ("The statute, however, speaks solely in terms of Proposed
actions; it does not require an agency to consider the possible environmental impacts of
less imminent actions when preparing the impact statement on proposed actions."). The
agency’s objective did not involve reducing development, and thus the BLM’s decision
to omit a scaled-back development alternative from its analysis did not violate NEPA.
c. BLM took a "hard look" at impact on hunting and sage
grouse as a whole.
As discussed above, "[n]either [NEPA] nor its legislative history contemplates that
a court should substitute its judgment for that of the agency as to the environmental
consequences of its actions." Kleppe, 427 U.S. at 410 n.21. Instead, the court’s role "is
16
to insure that the agency has taken a ‘hard look’ at the environmental consequences; it
cannot ‘interject itself within the area of discretion of the executive as to the choice of
action to be taken."’ Id. (citation omitted). To say the least, this is not the first time this
Court has had to evaluate the BLM’s actions as they relate to protecting wildlife in this
area of the country. See Theodore Roosevelt Conservatz'on Partnership v. Salazar
("TRCP"), 605 F. Supp. 2d 263, 276 (D.D.C. 2009). Once again, BLM, for the
following reasons, easily complied with its legal obligations set forth by Congress.
i. Huntz``ng
TRCP argues that "nowhere does BLM analyze how continued declines in big
game and sage-grouse in the PAPA (expected under all altematives) will affect the
number of hunting and related recreational activities that will continue to be afforded in
around the PAPA." Pl.’s Mot. 37. In particular, plaintiff claims that the failure to inform
hunters of "how the project might affect the number of hunting opportunities they might
be afforded if game populations decrease or collapse," or "what the WGFD might do
with regard to the issuance of permits" constitute a failure by the BLM to take a hard
look at the environmental consequences of its proposed action. Pl.’s Opp’n/Reply 17 . 1
disagree.
In the 2008 SEIS, the BLM analyzed three sources of data for recreation-days
spent hunting, including BLM data, WGFD data, and USFWS state-wide data.s See AR
49147-49. The BLM segregated the available data and found that days spent hunting
5 A "recreation-day" is "one day spent by one person recreating." AR 49147.
17
both state-wide and in the vicinity of the PAPA had been declining, but days spent
hunting within the PFO Administrative Area(’ had slightly increased.
More importantly, however, the BLM considered the project’s effect on big game
as well as game birds. lndeed, it would seem impossible to analyze the ramifications of
proposed development on hunting without analyzing its impact on wildlife, and
particularly big game and game birds, the objects of the hunt. The 2008 SEIS contains a
lengthy evaluation of the potential impact of the proposed development on wildlife
generally. See AR 49228-49247. lt discussed population and migration trends for
several big game species, such as pronghom, mule deer, and elk, and evaluated the extent
to which each species’ habitat coincided with the PAPA and its response to increased
development thus far. For example, the BLM noted that increased well pad development
was likely to displace wintering mule deer to less-developed areas, which may not be as
suitable. AR 49236. The SEIS goes on to set out a detailed analysis of the potential
impacts of each alternative on each form of wildlife in the PAPA. See AR 49405-26.
Ultimately the BLM concluded that "[d]ecreased hunting opportunities are expected in
the PAPA with decreased abundance of big game and upland game birds as the density of
wellfield development increases." AR 48993.
ln sum, the BLM’s extensive discussion of wildlife, and the proposed
development’s effects thereon, as well as its conclusions regarding hunting, constitute a
hard look that undoubtedly satisfies the requirements of NEPA.
6 "The PAPA comprises about 21 percent (198,037 acres) of the total PFO Administrative
Area (approximately 930,000 acres)." AR 49147.
18
ii. Sage grouse as a whole
TRCP also claims that the BLM failed to take a hard look at the impacts on the
sage grouse species (as opposed to the populations of sage grouse directly within and
surrounding the PAPA), which has been classified as sensitive and is close to being
endangered. See Pl.’s Mot. 38-39.7 The BLM, plaintiff argues, was required by its own
manual "to evaluate the potential for the 2008 ROD to hasten or otherwise contribute to
the species’ listing [under the Endangered Species Act]." Id. 40. Again, l disagree.
v While NEPA may require a "cumulative impact analysis," or an assessment of
"the impact the proposed project will have in conjunction with other projects in the same
and surrounding areas," TRCP, No. 09-5162, slip op. at 3 (emphasis added), it does not
require an unbounded analysis of an entire species range as the plaintiff here contends,
Compare Oregon Natural Res. Councz'l v. Marsh, 52 F.3d 1485 (9th Cir. 1995) (requiring
cumulative impact analysis on fish from all dams in the area) with Selkirk Conservation
Allz``ance v. Forsgren, 336 F.3d 944 (9th Cir. 2003) (upholding limited geographic scope
of grizzly bear analysis). ln Selkz``rk, the Ninth Circuit held that the Forest Service’s
decision to limit its analysis of a project on grizzly bears to a specific geographic area
satisfied NEPA, noting that the agency was "allowed to consider ‘practical considerations
of feasibility’ in its selection of a geographic scope for an ElS." 336 F.3d at 960 (quoting
Kleppe, 427 U.S. at 412).
7 On March 12, 2010, plaintiff "notified the Court that the U.S. Fish and Wildlife Service
had concluded its 12-month review of the status of the Greater sage-grouse under the
Endangered Species Act, 16 U.S.C. §§ 1531 et seq." and determined that "listing the
greater sage-grouse (rangewide) is warranted, but precluded by higher priority listing
actions." Pl.’s Notice of Supplemental Authority [#38] 1 (internal quotation omitted).
19
The sage grouse species range extends into 11 states and 2 Canadian provinces.
W. Watershed Project v. Fish and Wildlife Serv., 535 F. Supp. 2d 1173, 1177 (D. ldaho
2007); see also Pl.’s Notice of Supplemental Authority [#38], Ex. A at 11 (table of
estimated sage grouse populations across 11 states and Canada). In this case, the BLM
evaluated the project’s potential impacts on sage grouse within and around the PAPA.
As in Selkz``rk, I find that the BLM’s decision to limit the geographic scope of its analysis
is entitled to deference, and that it had no obligation to assess the impact on the sage
grouse species as a whole. Thus, TRCP’s claim on this ground must also fail.
Moreover, the BLM’s analysis of the impacts on sage grouse within the PAPA
was complete. First, the BLM took into account the fact that increased development in
the PAPA was likely to have severe effects on the already-declining sage grouse
population. See, e.g., AR 49411-13 (discussing declines in sage grouse population and
negative effects of wellfield development and associated surface disturbances); AR
49425 ("Throughout their range, greater sage-grouse have been adversely affected by
habitat loss due to agriculture, energy development, rural and urban housing, and roads,
as well as by habitat fragmentation from fences and powerlines. . . . Cumulative impact to
sagebrush by the Alternatives is expected to be substantial.").
Second, the BLM did consider the comments of the FWS with respect to sage
grouse. The FWS recommended greater protection of the sage grouse habitat consistent
with the objectives of the 2000 Memorandum of Understanding between the BLM and
the Western Association of Fish and Wildlife Agencies. AR 5 1279. The BLM directly
responded to this comment, noting that those objectives could not be met under intensive
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natural gas development. AR 29784. The plaintiff suggests that because FWS has
expertise in wildlife management, BLM was required to defer to FWS’s comment. But
that is not so. "Although an agency should consider the comments of other agencies, it
does not necessarily have to defer to them when it disagrees." TRCP, 605 F. Supp. 2d at
276 (quoting Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 289 (4th
Cir. 1999)). As the defendants point out, BLM’s reasoned disagreement that the sage
grouse habitats could not be fully protected consistent with the existing lease rights easily
satisfies NEPA’s hard look requirement.
d. BLM’s discussion of mitigation satisfies NEPA.
TRCP’s last claim with respect to the 2008 ROD is that the BLM failed to
properly acknowledge the collapse of AEM under the 2000 ROD and to include a
meaningfial discussion of monitoring and mitigation requirements in the 2008 SEIS.
Though NEPA requires that an EIS contain a detailed description of mitigation measures
"to ensure that environmental consequences have been fairly evaluated, . . . it would be
inconsistent with NEPA’s reliance on procedural mechanisms-as opposed to
substantive, result-based standards-to demand the presence of a fully developed plan
that will mitigate environmental harm before an agency can act." Robertson, 490 U.S. at
352-53 (citation omitted); see also TRCP, No. 09-5 162, slip op. at 4 ("NEPA does not
require agencies to discuss any particular mitigation plans they might put in place, nor
does it require agencies-or third parties-to effect any.") (internal quotations omitted).
Instead, an agency’s discussion of mitigation measures need only be "reasonably
complete." Robertson, 490 U.S. at 352. As the defendants point out, the allegedly
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deficient implementation of AEM and malfunctioning of the PAWG under the 2000 ROD
does not affect the BLM’s otherwise detailed mitigation plans set out in the 2008 ROD.
The mitigation plans the agency laid out in the SEIS are discussed above; because these
plans are, at a minimum, "reasonably complete," the BLM did not violate NEPA in its
discussion of mitigation.
C. 2000 ROD
Finally, TRCP argues that the BLM’s 2000 ROD violated both NEPA and
FLMPA because AEM was never implemented, and seeks declaratory relief as to such.
However, l decline to address these claims because the 2000 ROD was superseded in its
entirety by the 2008 ROD, rendering these claims moot. See AR 48901.
"[A] federal court is authorized only to adjudicate actual, ongoing controversies,
and thus may not give opinions upon moot questions or abstract propositions, or . . .
declare principles or rules of law which cannot affect the matter in issue in the case
before it." Beethoven.com LLC v. Librarian of Congress, 394 F.3d 939, 950 (D.C. Cir.
2005) (quotations omitted). "In general a case becomes moot when the issues presented
are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome."
Murphy v. Hunt, 455 U.S. 478, 481 (1982) (quotation omitted). ln cases such as this,
where the plaintiff seeks only declaratory relief, a question is moot unless judicial
pronouncement will affect the defendant’s behavior "towards the plaintif ." Hewitt v.
Helms, 482 U.S. 755, 761 (1987) ("The real value of the judicial pronouncement-what
makes it a proper judicial resolution of a ‘case or controversy’ rather than an advisory
opinion_is in the settling of some dispute which a]j’ects the behavior of the defendant
22
towards the plaintiff."). Accordingly, if a plaintiff disputes an already-completed action,
a request for declaratory relief is moot because judicial pronouncement can no longer
alter the defendant’s behavior. See F and for Anz``mals, Inc. v. U.S. Bureau of Land Mgmt.,
460 F.3d 13, 18 (D.C. Cir. 2006) (holding claim that BLM memo was issued in violation
of NEPA moot because memo had expired). TRCP seeks to have the Court declare that
the BLM violated NEPA and FLMPA by failing to implement the mitigation procedures
described in the 2000 ROD. Am. Compl. at 44. However, TRCP’s claims concern a
decision that has been superseded and thus ceases to have any effect. Cf Fund for
Animals, Inc. v. Hogan, 428 F.3d 1059, 1064 (D.C. Cir. 2005) (finding moot claims
regarding a FWS letter that was superseded in full by a belated 90-day finding).
Accordingly, TRCP’s claims based on the BLM’s actions under the 2000 ROD are moot.
TRCP argues that its claim is not moot because "the Court can effectuate a partial
remedy." Pl.’s Opp’n/Reply 7. But both in its pleadings and at oral argument, TRCP
failed to articulate what partial remedy it seeks with respect to the 2008 ROD.$ Instead,
8 TRCP relies on two Tenth Circuit cases to support its claim. Pl.’s Opp’n/Reply 15-16
(citing Utah Env ’t Cong. v. Russell, 518 F.3d 817 (l0th Cir. 2008) and Az'rport Nez``ghbors
Alliance, Inc. v. United States, 90 F.3d 426 (l0th Cir. l996)). However, in both of those
cases, an ongoing aspect of the completed agency decision at issue would continue to
affect the plaintiffs, For example, in Utah Environmental Congress, the plaintiff
challenged the Forest Service’s decision to use a salt as a dust abatement mechanism.
518 F.3d at 823. Although the Forest Service contracted for just one application of salt,
its Environmental Assessment (EA) called for road salt application "as needed." Id. at
824. Accordingly, the Tenth Circuit found that plaintiffs claims were not moot because
plaintiff was subject to continued application of road salt so long as the EA remained in
effect. Ia'. at 825. Similarly, in Airport Neighbors Alliance, the Tenth Circuit found that
a challenge to an EA permitting expansion of an airport runway (that had been
completed) was not moot because it could address "the environmental impacts resulting
from the enhanced use of the runway." 90 F.3d at 429. l find these cases unpersuasive,
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TRCP seeks suspension or modification of the 2008 ROD to redress the alleged
wrongdoing it claims occurred in the implementation of the 2000 ROD. Thus, this Court
would have to find that both the 2000 ROD and the 2008 ROD were unlawfully
implemented before the Court can fashion the relief plaintiff seeks. However, for the
reasons discussed above, 1 find that the BLM’s adoption of the 2008 ROD lawful, leaving
the Court with no remedy to address any alleged NEPA or FLMPA violations with
respect to the 2000 ROD.
CONCLUSION
For all the foregoing reasons, the plaintiffs Motion for Summary Judgment is
DENIED, and the federal defendants’ and defendant-intervenors’ Cross Motions for
Summary .ludgment are GRANTED. An appropriate Order will accompany this
memorandum opinion.
United States
however, because unlike in those cases, TRCP is no longer subject to activity authorized
by the agency decision, as the agency decision at issue_the 2000 ROD-has been
superseded. Instead, all current activity in the PAPA is authorized by the 2008 ROD.
24