Theodore Roosevelt Conservation Partnership v. Kempthorne

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
THEODORE ROOSEVELT)
CONSERVATION PARTNERSHIP )
)
Plaintiff, )
)
v. ) Civ. Action No. 07-01486 (RJL)
)
KEN SALAZAR, UNITED STATES )
BUREAU OF LAND )
MANAGEMENT, )
)
Defendants )
)
v. )
)
ANADARKO PETROLEUM )
CORPORATION, WARREN )
RESOURCES, INC., DOUBLE )
EAGLE PETROLUEM, CO., )
and STATE OF WYOMING, )
)
Intervenor Defendants. )
AND
NATURAL RESOURCES DEFENSE )
COUNCIL, BIODIVERSITY )
CONSERVATION ALLIANCE, )
WYOMING OUTDOOR COUNCIL, )
WESTERN WATERSHEDS PROJECT, )
WYOMING WILDERNESS )
ASSOCIATION, )
)
Plaintiffs, )
)
v. ) Civ. Action No. 07-1709 (RJL)
)
KEN SALAZAR, U.S. DEPARTMENT)
OF THE INTERIOR, U.S. BUREAU )
OF LAND MANAGEMENT, )
)
Defendants. )
)
v. )
)
STATE OF WYOMING, ANADARKO )
PETROLEUM CORPORATION, )
WARREN RESOURCES, INC., )
DOUBLE EAGLE PETROLEUM CO., )
)
Intervenor Defendants. )
s-t
MEMORANDUM OPINION
(March ~ I , 2009)
[#43, #47, #50, #53 (07-cv-01486); #50, #59, #60, #64 (07-cv-1709)]
These two cases involve challenges to the government's decision to grant drilling
permits in the Atlantic Rim area of Wyoming. The Theodore Roosevelt Conservation
Partnership (TRCP) brought one of these actions in 2007 against the Secretary of the
Interior,! the Department of the Interior, and the Bureau of Land Management (BLM),
challenging the granting of drilling permits as "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law" under the Administrative Procedure
Act, 5 U.S.C. § 706(2)(A), and thus in violation of the Federal Land Policy Management
Act (FLPMA), 43 U.S.C. §§ 1702 et seq., and the National Environmental Policy Act
lPursuant to Federal Rule of Civil Procedure 25(d), if a public officer named as a
party to an action in his official capacity ceases to hold office, the court will automatically
substitute that officer's successor. Accordingly, the Court substitutes Ken Salazar for
Dirk Kempthome.
2
(NEPA), 42 U.S.C. §§ 4321 et seq. Five additional plaintiffs-Natural Resources
Defense Council, Biodiversity Conservation Alliance, Wyoming Outdoor Council,
Western Watershed Project, and Wyoming Wilderness Association (NRDC
plaintiffs)-brought a separate lawsuit later in 2007, alleging that the government
violated NEPA when it granted these drilling permits. 2 The three operator companies
who received the permits-Andarko Petroleum Corporation, Warren Resources, Inc., and
Double Eagle Petroleum Co.-and the State of Wyoming intervened in both cases in
support of the BLM decision. Each of the parties has filed a summary judgment motion.
After considering the parties' submissions, caselaw, and the record, the Court DENIES
the plaintiffs' summary judgment motions and GRANTS the summary judgment motions
filed by the federal defendants, the operator-intervenors, and the State of Wyoming.
BACKGROUNDJ
BLM issued drilling permits after approving a Record of Decision (ROD) for the
Atlantic Rim Natural Gas Field Development Project. This project manages more than
270,000 acres of publicly and privately owned land in south-central Wyoming, which is
the home to many species of big game and a dense population of sage grouse. This area
is also rich in oil and natural gas deposits and has been under development since the
2Although this Court denied a motion to consolidate the two above-captioned cases, the Court
has decided to issue one opinion for both cases in light of their common factual issues. See Fed.
R. Civ. P. 42.
3For additional background, see this Court's earlier decision denying NRDC plaintiffs motion
for a preliminary injunction: NRDC v. Kempthorne, 525 F. Supp. 2d 115, 117-19 (D.D.C. 2007).
3
1950s.4 Indeed, the land now provides more than 5% of Wyoming's total gas production.
NRDC v. Kempthorne, 525 F. Supp. 2d 115, 117 (D.D.C. 2007) (ruling on a preliminary
injunction).
BLM's evaluation and approval of the Atlantic Rim project was the culmination of
seven years of study. In May 2001, oil and gas companies, which ultimately included
Anadarko Petroleum, Warren Resources, and Double Eagle Petroleum, notified BLM that
they wanted to explore and potentially develop more than 3,880 natural gas wells in the
Atlantic Rim area. Id. BLM released a draft environmental impact statement in
December 2005,5 in which it analyzed in detail the environmental effects of three
alternative proposals. (See Draft Environmental Impact Statement for the Atlantic Rim
Natural Gas Field Development Project, Carbon County, Wyoming (DEIS), Dec. 2005
(AR 1436).) Under Alternative A, existing wells would have continued to operate but
additional drilling would be rejected. (FEIS at ES-2 (AR 2089).) Under Alternative B,
BLM would have accepted the companies' proposals for additional drilling, but the
project would have been developed in three phases over the course of twenty years, with
the first developed over a six-to-seven-year period. (DEIS at 2-2 (AR 1489); DEIS at 5-3
4In 2001, before the disputed BLM action, 116 natural gas wells were in the area. (Final
Environmental Impact Statement for the Atlantic Rim Natural Gas Field Development Project,
Carbon County, Wyoming (FEIS), Nov. 2006 at ES-l (AR 2088).)
5NEP A requires all federal agencies to prepare and circulate for public review and comment an
"Environmental Impact Statement" for federal action that will "significantly affect[] the quality
of the human environment." 42 U.S.C. § 4332(C).
4
(AR 1445).) Under Alternative C, BLM would have accepted the companies' proposals
for additional drilling, but would have employed special protection measures to limit
surface disturbance, such as reducing road density and allowing fewer areas of
disturbance. (FEIS at ES-2 (AR 2089).)
After the initial comment period, BLM released a final environmental impact
statement in December 2006, in which BLM selected a fourth alternative, Alternative D.
Under this alternative, approximately 2,000 new wells would be drilled, but the amount of
surface disturbance at any given time would be limited to less than 7,600 acres, which is
2.8% of the total project area. (See FEIS at ES-l to ES-3 (AR 2088-90).) Indeed,
Alternative D's "objective ... is to minimize surface disturbance while optimizing natural
gas recovery." (Id. at 2-7 (AR 2155).) The final impact statement deferred evaluation of
environmental impacts for site-specific drilling projects until the specific proposals were
received. NRDC, 525 F. Supp. 2d at 117 n.4.
BLM received comments on the final environmental impact statement and
responded to them in the ROD, which was published in March 2007. 6 (Record of
Decision, Environmental Impact Statement for the Atlantic Rim Natural Gas Field
Development Project (ROD), Carbon County, Wyoming, Mar. 2007 (AR 4791).)
6The plaintiffs appealed BLM's Rule of Decision and Final Environmental Impact Statement to
the Interior Board of Land Appeals. NRDC, 525 F. Supp. 2d at 118. The Interior Board of Land
Appeals denied that appeal on September 5, 2007. Id. NRDC plaintiffs lost the appeal before
the BIA and lost their Motion for a Preliminary Injunction to halt further development before this
Court in November 2007. See id. at 117.
5
According to the ROD, the final project is expected to produce 1,350 billion cubic feet of
natural gas over its 30-50 year life span, which is enough gas to heat 19.3 million homes
for one year. (ROD at 11 (AR 4806).) Indeed, BLM itself acknowledged the
development it was authorizing would "adversely impact certain resource values and limit
opportunities for other uses in the short-term," but noted "the long-term goal is to return
these lands to a condition approximate to that which existed before developments." (Id.
at 4 (AR 4799).)
In the summer of2007, BLM approved Double Eagle's drilling permits in the
Catalina area of the ARPA and Andarko's applications to drill in the Sun Dog area of the
ARPA. See NRDC, 525 F. Supp. 2d at 118; (Environmental Assessment, Catalina A & B
PODs, June 18,2007 (AR 73492); Environmental Assessment, Sun Dog A & B PODs,
Aug. 13,2007 (AR 74063).) BLM conducted site-specific environmental assessments
(EAs) and concluded that "the [environmental] impacts [were] not expected to be
significant." NRDC, 525 F. Supp. 2d at 119. Accordingly, BLM did not prepare
environmental impact statements for the Catalina area or Sun Dog projects. Id.ANALYSIS
All of the parties have filed motions for summary judgment, which are especially
appropriate in cases such as this because the 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, the Court will only grant summary judgment when there are "no
6
genuine issues of material fact" and the party is entitled to judgment as a matter of law.
Id. Because plaintiffs are challenging action by an administrative agency, the plaintiffs
have the burden of establishing that the agency acted arbitrarily, capriciously, or
otherwise not in accordance with the law. 5 U.S.C. § 706(2)(A); Am. Bird Conservancy,
Inc. v. FCC, 516 F.3d 1027,1031 (D.C. Cir. 2008). For the following reasons, the Court
concludes that BLM's decisions were not arbitrary, capricious, or otherwise unlawful and
thus did not violate either NEP A or FLPMA.
I. BLM did not violate NEP A.
NEP A is the "basic national charter" for environmental protection. 40 C.F .R. §
1500.1(a). It requires federal agencies to analyze the environmental impact of their
proposed actions by preparing environmental impact statements for actions
"significantly" affecting the environment. 42 U.S.C. § 4332(c); see also Biodiversity
Conservation Alliance v. BLM, 404 F. Supp. 2d 212, 216 (D.D.C. 2005). NEPA does not
mandate particular outcomes, but requires only that agencies take "a hard look" at the
environmental consequences of their proposed courses of action, Marsh v. Oregon
Natural Res. Council, 490 U.S. 360, 374 (1989), and "consider every significant aspect of
the environmental impact of a proposed action," Baltimore Gas & Elec. Co. v. NRDC,
462 U.S. 87, 97 (1983) (quotation omitted). In determining whether BLM violated
NEPA, "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. '" Biodiversity
7
Conservation Alliance, 404 F. Supp. 2d at 216 (quoting Citizens to Preserve Overton
Parkv. Volpe, 401 U.S. 402, 415-16 (1971)). The Court must not substitute its judgment
for that of the agency's, as "NEPA merely prohibits uninfonned-rather than
unwise-agency action." Robertson v. Methow Valley Citizens Council, 490 U.S. 332,
351 (1989).
NEP A requires agencies to first conduct an "environmental assessment" to
detennine whether a proposed action will have a significant effect on the environment.
40 C.F.R. §§ 1508.9(a), 1508.13; Winter v. NRDC, 129 S. Ct. 365, 372 (2008). If, after
conducting an environmental assessment, the agency detennines that the environmental
impacts will not be significant, the agency must issue a "finding of no significant impact,"
40 C.F .R. § 150 1.4(e), explaining why the agency action will not significantly affect the
environment, 40 C.F.R. § 1508.13. If the agency detennines in the environmental
assessment that the proposed action will have significant environmental effects, the
agency analyzes these effects in an "environmental impact statement" (EIS). An EIS is a
document detailing a "range of alternatives" the agency considered and how the agency's
ultimate decision will comply with environmental laws and policies. 40 C.F.R. § 1502.2.
An agency cannot make a decision or commit resources favoring an alternative before
conducting the environmental assessment. 40 C.F.R. § 1502.2(f).
In this case, BLM issued an EIS for the Atlantic Rim Project as a whole and issued
only environmental assessments and findings of no significant impact for site-specific
8
drilling projects referencing the broader project: the Catalina and Sun Dog projects. See
NRDC, 525 F. Supp. 2d at 118-19. The plaintiffs allege BLM violated NEPA when it did
this because it: (a) did not take the requisite hard look at environmental effects; (b) did
not evaluate a reasonable range of alternatives; (c) failed to address the effects of the
project in conjunction with other development; (d) violated NEPA's public-participation
requirements; (e) unlawfully relied on adaptive management for mitigation; (f)
prematurely committed resources to development; (g) failed to identify an environmental
baseline from which to calculate the project's effects on wildlife; and (h) allowed for
consideration of exemptions and waivers in the EAs when such was not contemplated in
the EIS. For the following reasons, the Court disagrees and finds the plaintiffs have not
established that BLM acted either arbitrarily or capriciously.
A. BLM took the requisite hard look at environmental effects before
approving drilling permits.
The plaintiffs first argue that BLM failed to take a hard look at the environmental
consequences of drilling. (NRDC Pl.'s Mot. for Summ. J. at 5.) Specifically, the NRDC
plaintiffs argue BLM failed to take a hard look at: (1) the project's impacts on air quality;
(2) the potential for methane leaks; and (3) the project's effects on a large bird, the greater
sage grouse. For the following reasons, I disagree.
9
i. BLM took a hard look at the project's impacts on air quality.
The NRDC plaintiffs argue BLM failed to take a hard look at the effects of the
project on air quality because BLM used a discredited method to analyze the ozone air
quality and because BLM used an allegedly wrong baseline figure to identify the level of
ozone in the area prior to the project's development. Not so.
Although BLM predicted the project's effects on ozone levels using a method that
is no longer the best available, BLM did not violate NEPA's standards for scientific
integrity. C! Envtl. De! v. Us. Army Corps ofEng'rs, 515 F. Supp. 2d 69,80-81
(D.D.C. 2007) (citing 40 C.F.R. § 1502.24 and finding the agency's "fail[ed] to
incorporate known" factors into its calculation )). Indeed, BLM used a method that "was
considered by the inter-agency air quality team to be a reasonable tool and an acceptable
ozone estimation method at the time the air quality analysis was conducted." (ROD at 7
(AR 4802).) Although BLM selected this method (ie. the Scheffe Method) at a time
when it was the best method available, the plaintiffs argue BLM had time to update and
correct the ozone analysis before issuing its final impact statement. (NRDC Pl.s'
Combined Reply and Opp'n to Cross Mot. for Summ. J. at 3-4.) However, given that the
ozone analysis for this project was already complete, BLM carefully considered that very
issue, (see Info. Memorandum for State Director, Aug. 31, 2006 (AR 8666); see also
BLM to EPA - Notes: Ozone: What's Next?, Sept. 8,2006 (AR 8667)), and decided to
continue operating under the "agreed upon timeline." (Info. Memorandum for State
10
Director, Aug. 31,2006 (AR 8666).) While that decision might not be ideal from the
NRDC plaintiff s perspective, it was carefully considered, based on reason, and therefore
neither arbitrary nor capricious. See Bensenville v. FAA, 457 F.3d 52, 71 (D.C. Cir.
2006). As our Circuit Court found in deciding a similar issue, while it is "desirable ...
for agencies to use the most current and comprehensive data available when making
decisions," an agency's reliance on outdated data is not arbitrary or capricious,
"particularly given the many months required to conduct full [analysis] with the new
data." Id.; see also W. Coal Traffic League v. ICC, 735 F.2d 1408, 1411 (D.C. Cir. 1984)
(noting, in a case involving a different regulation, that "[w ]hile the legislature did require
the [agency] to revisit the standards periodically with a view to revision, it did not
command the [agency] to behave like Penelope, unravelling each day's work to start the
web again the next day"); Winthrop v. FAA, 535 F.3d 1, 10 (lst Cir. 2008) (noting that the
agency "adequately considered the continuing validity of the [then-outdated] data
underlying the FEIS" and that "its determination that the data were still adequate,
accurate, current, and valid was not arbitrary and capricious").
In addition to disputing the method BLM used, the NRDC plaintiffs allege that the
BLM failed to take the requisite hard look at the air-quality effects because BLM used an
allegedly wrong figure to calculate the project's effect on ozone levels. (NRDC Pl.'s
Mot. for Summ. J. at 17.) I disagree. BLM calculated the project's effect on ozone levels
by modeling background ozone levels and evaluating potential impacts against that
11
background level. (Fed. Def.'s Mot. for Summ. J. at 20.) In using this approach, BLM
used a figure representing the hourly average of ozone-concentration levels when,
plaintiffs argue, it should have used a figure representing the level averaged over eight
hours. (See FEIS at 4-13 (AR 2332).) NRDC plaintiffs contend that BLM thus failed to
use "the same averaging time periods," as it stated it would do earlier in the EIS. (See
FEIS at 3-19 (AR 2183).) However, the record indicates the plaintiffs' preferred
approach "results in an overestimate of the potential [ozone] concentrations" given that
"[ozone] formation is a complex atmospheric chemistry process that varies greatly due to
meteorological conditions and the presence of ambient atmospheric concentrations of
many chemical species." (FEIS App. F at 60, Air Quality Technical Support Document,
July 2006 (AR 2704) (emphasis added).) As BLM explains, "[o]zone, unlike other
pollutants analyzed in the FEIS, is not directly emitted from a point source." (Fed. Def.'s
Mot. for Summ. J. at 20.) Instead, ozone "is formed in the atmosphere as a result of
photochemical reactions involving ambient concentrations ofN02 and VOC." (FEIS
App. F at 42, Air Quality Technical Support Document, July 2006 (AR 2686).) As a
result of this complication, BLM reasonably chose to use a figure representing the hourly
average instead of the eight-hour average. Choosing a more accurate method of analysis
is precisely the type of decision best left to agency expertise. See Ocean Conservancy v.
Gutierrez, 394 F. Supp. 2d 147, 157 (D.D.C. 2005) ("Courts defer to [agency] decisions
that are supported in the record and reflect reasoned decision making, especially where, as
12
here, the dispute involves technical issues that implicate substantial agency expertise.").
Because BLM's decision was reasoned and based in fact, it was neither arbitrary nor
capricious, and this Court will "not substitute [its] judgment" for the agency's or "attempt
to resolve conflicting scientific opinions." Izaak Walton League ofAm. v. Marsh, 655
F.2d 346,372 (D.C. Cir. 1981).
ii. BLM considered the potential for methane leaks.
The NRDC plaintiffs next assert that BLM knew the project could trigger the
release of methane gas, but did not adequately disclose this in the EIS. The plaintiffs
specifically cite a report by a BLM scientist, Jon N. Dull (Dull Report). (Dull, Jon N.,
Documentation and Appraisal of Known Gas Seeps Within the Atlantic Rim Coal Bed
Natural Gas Development Area, Carbon County, Wyoming, Feb. 6, 2007 (AR 8799).)
While the Dull Report does discuss potential problems from methane gas seeps, the report
itself, which was only in draft form when BLM published the final EIS, recognizes the
uncertainties involved. According to the Dull Report, "[a]t this point in time there is no
scientific data available to prove or disprove that ... development within the ARPA has
caused or will cause increased gas flux from the known gas seeps." (Id. at 7 (AR 8805).)
BLM also recognized the uncertainties, noting that "[t]he number or location of these
seeps is impossible to predict." (FEIS at 4-32 (AR 2351).) In light of the lack of
information on methane gas seeps, BLM determined that "monitoring would be
established to evaluate [their] impact." (FEIS at 4-32 (AR 2351); see also FEIS at 4-49
13
(AR 2368).) As this Court previously found, "the project could increase the risk of
methane seeps" but "NEPA requires consideration of only the 'reasonably foreseeable
environmental effects of the action,' rather than every conceivable possibility." NRDC,
525 F. Supp. 2d at 122 (emphasis added) (quoting Hammond v. Norton, 370 F. Supp. 2d
226,245-46 (D.D.C. 2005)). Given the state of the methane-seep evidence, BLM did not
need to address methane seeps in any greater detail. Id.; see Pub. Uti/so Comm 'n of Cal.
v. FERC, 900 F.2d 269,282-83 (D.C. Cir. 1990) (finding NEPA does not require
agencies to consider environmental effects of actions that are not reasonably foreseeable,
especially in light of the agency's discussion of how it would mitigate any effects that
may occur in the future); cf NRDC V. Hodel, 865 F.2d 288,298-99 (D.C. Cir. 1988)
(finding a "few sentences" in the FEIS insufficient to address the effects of "reasonably
foreseeable" actions).
iii. BLM took a hard look at the project's impacts on sage grouse.
The greater sage grouse is a large North American bird located in the Atlantic Rim
Project Area with a declining population. (BLM Nat'l Sage-Grouse Habitat Conservation
Strategy, Nov. 2004 at 6 (AR 5505).) The plaintiffs argue that, despite evidence
indicating the project's effects on sage grouse warranted a serious look/ BLM did not
fully analyze the effects on sage grouse or address mitigation measures. I disagree.
7In commenting on the alternatives, the U.S. Fish and Wildlife Service expressed concern that the
project's effects on sage grouse habitats "may be irreversible and no amount of mitigation can
restore or replace what is lost." (FEIS at 0-8 (AR 4404).)
14
NEP A does not require a "flawless" examination of mitigation, only one that is
"reasonably complete." Citizens Against Burlington Inc. v. Busey, 938 F.2d 190,206
(D.C. Cir. 1991). As this Court stated in its earlier decision relating to the NRDC
plaintiffs' preliminary injunction motion, "the record reflects that BLM considered
several alternatives which offered varying degrees of protection to the sage-grouse
population .... " NRDC, 525 F. Supp. 2d at 121. Additionally, I found that the plan
BLM ultimately adopted includes numerous mitigation measures. 8 Id. at 121-22. Thus,
"although the plaintiffs are dissatisfied with the level of protection provided under the
current mitigation plan, the record clearly reflects that BLM analyzed and considered
various alternatives and put in place measures far more stringent than those included in
the original proposal." Id. at 122. Accordingly, this basis for the plaintiffs' motion must
also fail.
8Specifically, this Court found that "[i]n addition to limiting the total amount of surface
disturbance to 2.8% ofthe total area at anyone time, BLM has: (1) prohibited surface
disturbance or occupancy within one-quarter mile of the perimeter of occupied leks (sage-grouse
breeding grounds) and within two miles of occupied leks between March 1 and July 15; (2)
barred all human activity within one-quarter mile of the leks between 6:00 p.m. and 9:00 a.m.
from March 1 to May 20; (3) limited construction of permanent, high-profile structures within
one-quarter to one mile of leks; (4) prohibited surface disturbances between November 15 and
March 14 in delineated winter concentration areas; and (5) required muffling of generator noise
in order to minimize disturbance of dancing and strutting grouse (apparently an integral
component ofthe sage-grouse mating ritual)." NRDC, 525 F. Supp. 2d at 121-22. Contrary to
the NRDC plaintiffs' assertion, BLM's determinations of the project's effects on sage grouse and
mitigation measures was reasoned and supported by the evidence. (See FEIS at 3-96 (AR 2260)
(discussing sage grouse studies), FEIS at 5-17 to 5-18 (AR 2499-500) (discussing sage grouse
and citing studies).)
15
The plaintiffs further argue the Fish and Wildlife Service's comment that losses of
sage grouse habitats "may be irreversible," (US Fish and Wildlife Service Memorandum,
Jan. 26, 2006 at 2 (AR 3255», imposed a duty on BLM to determine whether the plan
would cause sage grouse to be listed as a threatened or endangered species. However, the
plaintiffs do not cite any statute or case law supporting the imposition of this duty.
Additionally, the evidence demonstrates that BLM analyzed the effects of the project on
sage grouse and adopted mitigation measures in response. BLM acknowledged that the
project would "lead to lower productivity and long-term decline in the population of
[greater sage-grouse.]" (FEIS at 4-79 (AR 2395).) BLM acknowledged in the final EIS
that regardless of which alternative it chose, "[i]mpacts to greater sage-grouse and
Columbian sharp-tailed grouse would be significant," (FEIS at ES-5 (AR 2092», as
"there is no way to fully develop the oil and gas resources within the project area without
these effects," (FEIS at 0-8 (AR 4044).) BLM, however, ultimately balanced the
interests and reached the reasoned determination to develop the oil and gas resources.
This record clearly indicates that BLM took seriously the concerns of the Fish and
Wildlife Service and responded in a manner designed to minimize the project's effects on
sage grouse. See us. Satellite Broad. Co. v. FCC, 740 F.2d 1177, 1188 (D.C. Cir. 1984)
("In notice and comment rulemaking, an agency need not respond to every comment so
long as it responds in a reasoned manner to significant comments received."). "Although
an agency should consider the comments of other agencies, it does not necessarily have to
16
defer to them when it disagrees." Hughes River Watershed Conservancy v. Johnson, 165
F.3d 283,289 (4th Cir. 1999). Thus, this contention is equally to no avail.
B. BLM Did Evaluate a Reasonable Range of Alternatives.
NEP A requires agencies to "[r]igorously explore and objectively evaluate all
reasonable alternatives" in environmental impact statements and "briefly discuss the
reasons" for eliminating alternatives from consideration. 40 C.F.R. § 1502.14(a). TRCP
next argues that the BLM failed to evaluate a reasonable range of alternatives. In
particular, TRCP alleges BLM failed to do this in eliminating Alternative B from the final
environmental impact statement. (TRCP Pl.'s Mot. for Summ. J. at 12.) This alternative
"proposed that natural gas development activities would be restricted to one of three
zones within the ARPA boundary at anyone time." (FEIS at 2-12 (AR 2160).) For the
following reasons, I disagree with TRCP's contention.
BLM did consider Alternative B in detail in the draft EIS. Specifically, BLM
considered aspects of Alternative B such as economic effects, (DEIS at S-6 (AR 1448»,
geological effects, (DEIS 2-10 (AR 1497», and effects on land, water, vegetation,
wildlife, and recreation, (DEIS at 2-10 to 2-16 (AR 1497-1503).) After considering the
alternative in the draft EIS, BLM was only required to "briefly discuss the reasons" for its
elimination in the final EIS. 40 C.F.R. § 1502.14(a); Tongass Conservation Soc. v.
Cheney, 924 F.2d 1137, 1141 (D.C. Cir. 1991) (noting the regulations require an agency
to "only 'briefly discuss the reasons' why rejected possibilities were not 'reasonable
17
alternatives'" (quoting 40 C.F.R. § 1502. 14(a))); see also Robertson, 490 U.S. at 350-51(1989) (noting NEPA only mandates processes; it does not dictate outcomes). Indeed,
BLM eliminated the alternative in the final environmental impact statement due to the
prolonging effect it would have on leaseholders and mineral rights development and
would, as a result, contravene BLM's policy to allow reasonable access across federal
lands for mineral development on both private and state lands. (FEIS at 2-12 to 2-13 (AR
2160-61); ROD at 14 (AR 4809)); see Hells Canyon Alliance v. Us. Forest Serv., 227
F.3d 1170, 1181 (9th Cir. 2000) (noting an agency did not violate NEPA by excluding an
alternative that "would have been unrealistic in light of the statutorily mandated
objectives" "of striking an appropriate balance between recreational and ecological
values,,).9 Such reasoning is neither arbitrary nor capricious.
Finally, TRCP also argues, based only on BLM's inclusion of two alternatives,
BLM did not consider a reasonable range of alternatives in the environmental assessments
9TRCP cites a Ninth Circuit case to support its argument that BLM's dismissal of Alternative B
resulted in the final environmental impact statement containing three alternatives that were
"virtually identical," in violation ofNEPA. (TRCP Pl.'s Mot. for Summ. J. at 15 (citing Friends
o/Yosemite Valley v. Kempthorne, 520 F.3d 1024, 1038 (9th Cir. 2008).) The plaintiff argues
the three alternatives are virtually identical because they allow drilling of approximately the same
number of wells and have the same overall environmental effect. The evidence, however, does
not bear this out. While Alternatives C and D provide for the same number of drilling sites,
Alternative D limits the surface disturbance at any time to less than 2.8% of the total project area.
(FEIS, ES-2 to ES-3 (AR 2089-90).) Furthermore, Alternative A would have allowed for no
additional drilling or development and thus differs significantly from Alternatives C and D. The
Court finds the alternatives were not virtually identical and BLM's elimination of Alternative B
was not arbitrary or capricious. See Citizens Against Burlington, Inc., 938 F.2d at 193 (finding
an agency's consideration of only two alternatives was not arbitrary or capricious).
18
for the site-specific Sun Dog and Catalina plans. The defendants, however, note that the
EAs were "tiered" to the earlier EIS, in which BLM considered a reasonable range of
alternatives. (Environmental Assessment, Catalina A & B PODs, June 18, 2007, "Tiered
EA, FONSI and DR Form" (AR 73492); Environmental Assessment, Sun Dog A & B
PODs, Aug. 13,2007, "Tiered EA, FONSI and DR Form" (AR 74063).) "Tiering" is a
term describing BLM's practice of covering general matters in broad environmental
impact statements and later incorporating the EISs in site-specific analyses. 40 C.F.R. §
1508.28. The pertinent regulations here encourage tiering so repetitive discussions of the
same issues are eliminated and agencies can focus on actual issues ripe for decision. 40
C.F.R. § 1502.20. Thus, as a preliminary matter, because BLM tiered the environmental
assessments to the environmental impact statements, the environmental assessments do
not need to include as thorough of an analysis. 40 C.F .R. § 1508.28; Nevada v. Dep't of
Energy, 457 F.3d 78, 91-92 (D.C. Cir. 2006) (finding an agency took a hard look at
environmental impacts when the site-specific EIS was tiered to another EIS).
In making its argument, TRCP merely relies on the fact that BLM included only
two alternatives in the site-specific EAs: a proposal allegedly provided by the operators
and an alternative that would not allow any action. (TRCP Pl.'s Mot. for Summ. J. at 16.)
However, the evidence indicates that BLM did modify the operators' proposal. In fact,
BLM conducted site-specific review to consider environmental effects, and "[a]s a result .
. . several project components were moved to reduce potential impacts to soils, water,
19
resources, vegetation, and wildlife resources." (Catalina EA at 5 (AR 73496); Sun Dog
EA at 4 (AR 74066).) Specifically, after BLM's on-site inspections, well sites were
relocated, (Double Eagle Letter, Mar. 21, 2006 (AR 78560», project facilities were
moved to minimize sage grouse conflicts, (Degenfelder email, Apr. 7, 2006 (AR 78564»,
and prairie dog conflicts, (Storzer Letter, Apr. 24, 2006 (AR 78576», a site was moved to
avoid potential hydrological impacts, (Bargsten email, May 9, 2007 (AR 78787», and a
road was moved to conform to the recommendations of an archeological study,
(Degenfelder email, May 29,2007 (AR 78619).) Thus, the evidence clearly indicates
BLM did consider and adopt more protective measures after conducting its own review.
In light of the EAs' incorporation of the broader EIS and the BLM analyzing and
modifying the operator's proposal, BLM's inclusion of only two alternatives in the site-
specific EAs does not evince a failure to adequately consider environmental impacts. See
Citizens Against Burlington, Inc., 938 F.2d at 193 (finding an agency's consideration of
only two alternatives was not arbitrary or capricious).
c. BLM did not violate NEP A in failing to address the project's effects in
conjunction with other developments.
NEPA requires agencies to consider environmental effects of the plan in
conjunction with "other past, present, and reasonably foreseeable future actions." 40
C.F.R. §§ 1508.7 & 1508.25. Agencies need not consider actions that are not reasonably
foreseeable. The NRDC plaintiffs next assert that BLM failed to identify the cumulative
effects of additional developments: the Continental Divide-Creston Project and the
20
Hiawatha Project. 10 BLM explains that while it did consider other natural-gas
developments, II it did not consider these two because they were not reasonably
foreseeable. I agree.
In ruling on the preliminary injunction in NRDC, this Court found the Continental
Divide-Creston and Hiawatha Projects "had only begun to work their way through the
NEPA approval process when the FEIS was compiled." NRDC, 525 F. Supp. 2d at 123.
The draft environmental statements for these projects were still being prepared. The
Atlantic Rim final environmental impact statement was released to the public in
December 2006, see 71 Fed. Reg. 69582-83 (AR 9564-65), and the ROD was released in
May 2007, see 72 Fed. Reg. 28518-19 (AR 9574-75). BLM issued a notice of intent to
prepare EISs for the Continental Divide-Creston Project in March 2006, see 71 Fed. Reg.
10,989 (Mar. 3,2006), and for the Hiawatha Project in September 2006, 71 Fed. Reg.
52,571 (Sept. 6, 2006). Therefore, as this Court found, "absent some evidence that the
ultimate extent of these projects, as well as their ultimate approval, was reasonably
foreseeable, this Court [would] not overturn BLM's decision to exclude them from its
cumulative impact analysis." NRDC, 525 F. Supp. 2d at 123.
IOTRCP argues BLM failed to analyze the project's effects in conjunction with allegedly
foreseeable wind energy development. In making this argument, however, TRCP relies on
exhibits the Court has excluded. (See TRCP Pl.'s Mot. for Summ. J. at 22-24 (relying on
Exhibits K-M); see also Order granting #54 Motion to Strike (03/09/09).)
IlBLM did conduct a cumulative-impact analysis that included seven natural-gas developments
that had final environmental impact statements or environmental assessments. (FEIS at 5-2 to 5-
3 (AR 2484-85).)
21
In an attempt to show the Continental Divide/Creston project's approval was
reasonably foreseeable, the plaintiffs point to a BLM map dated June 9, 2006, (before the
ROD was published in March 2007), which includes the Continental Divide/Creston
project. (Rawlins Field Office-Minerals and Land Projects (AR 86298).) This map,
however provides no indication of when, if ever, the project would be approved. (Jd.)
The map thus provides no more evidence of the project's ultimate approval than the draft
environmental impact statements. See NRDC, 525 F. Supp. 2d at 123; Airport Impact
Relief Inc. v. Wykle, 192 F.3d 197,206 (lst Cir. 1999) (finding expansion of an airport
was not reasonably foreseeable, despite a memorandum of understanding discussing the
airport's expansion, because the expansion was "contingent on several events that mayor
may not occur over an eight-year span"). Thus, the plaintiffs have failed to provide this
Court any "evidence that the ultimate extent of the projects, as well as their ultimate
approval, was reasonably foreseeable." NRDC, 525 F. Supp. 2d at 123. Having already
determined the two projects were not reasonably foreseeable, and in the absence of
evidence to the contrary, the Court holds that BLM did not act arbitrarily or capriciously
in failing to incorporate them in its cumUlative-impacts analysis. See Public Uti!.
Comm 'n of Cal., 900 F .2d at 283 (holding "there was no need to consider the cumulative
impacts" of actions that were "not reasonably foreseeable").
22
D. BLM did not violate NEP A's public-participation requirements.
The plaintiffs next contend that BLM did not provide the public an opportunity to
comment on the site-specific analysis of drilling permits in the Catalina and Sun Dog
projects. Plaintiffs take this position notwithstanding this Court's earlier decision on the
preliminary injunction sought in this case that the public did have an opportunity to
comment on the EAs for the projects, given that the public was informed that BLM was
preparing EAs for these projects and that the permit applications were posted in a BLM
public reading room. NRDC, 525 F. SUpp. 2d at 120. The plaintiffs base their argument
on evidence that the permit applications themselves were not posted for the public, only
the notices of the pending determinations were posted. The plaintiffs thus argue that such
notice is not satisfactory because the regulations provide for public involvement "to the
extent practicable." 40 C.F .R. § 150 1.4(b). I disagree.
BLM, in fact, published notices of the EAs, NRDC, 525 F. SUpp. 2d at 120, and
NEP A regulations only require that that information be available for public review "[i]n
certain limited circumstances," 40 C.F.R § 150 1.4(e)(2), which plaintiffs, in effect,
concede do not apply in this case. As a result, the Court must defer to BLM's decision
regarding public participation with respect to the environmental assessments, because, as
our Circuit pointed out in TOMAC v. Norton, 433 F.3d 852, 861 (D.C. Cir. 2006), "the
23
agency has significant discretion in determining when public comment is required with
respect to EAs."12
E. BLM's reliance on adaptive management for mitigation was not
arbitrary or capricious.
The plaintiff further argues that BLM's adaptive-management-mitigation plan is
"so amorphous and ill-defined" that the agency was unable to determine the
environmental consequences of the project and thus unable to take the requisite "hard
look" at the project's effect on the environment. 13 (TRCP PI. 's Mot. for Summ. J. at
17-18.) Once again, I disagree. As this Court has already determined, the project
incorporated numerous specific mitigation techniques, such as limiting the total amount
of surface disturbance to 2.8% of the total area at anyone time, prohibiting surface
disturbance or occupancy near sage-grouse breeding grounds, imposing greater
protections during sage-grouse-breeding times, and limiting construction and noise
around the breeding grounds. NRDC, 525 F. Supp. at 121-22 (denying a preliminary
injunction and citing FEIS, at 2-8, E-7). Such planning is neither arbitrary nor capricious.
12The NRDC plaintiffs also argue that the failure to provide public participation poses problems,
because in the EIS, BLM explicitly delayed the required analysis until the site-specific
evaluations. Given that the public was only able to comment on the EIS and not the site-specific
assessments and that much of the required analysis under the final impact statement was delayed
until the site-specific assessments, plaintiffs argue, the public was precluded from participating in
much of the analysis. This Court, however, has already rejected this argument in its decision on
the preliminary injunction. NRDC, 525 F. Supp.2d at 121.
J3NEP A does not require agencies to implement mitigation measures, only to discuss possible
mitigation measures in the EIS. 40 C.F.R. § l502.l6(h); see also Robertson, 490 U.S. at 351-52;
NRDC, 525 F. Supp. 2d at 121-22.
24
TRCP also attempts to characterize BLM's commitment to continually monitoring
the project's environmental effects and to making adjustments "based upon how the
environment responds to future development and performance requirements," (ROD at B-
3 (AR 4837)), as equivalent to a decision to "act now and deal with environmental
consequences later," which is "plainly inconsistent with the broad mandate ofNEPA."
(See TRCP PI.' s Mot. for Summ. J. at 20-21 (citing Found. for N Am. Wild Sheep v.
USDA, 681 F.2d 1172, 1181 (9th Cir. 1982)).) In short, TRCP asserts that in seeking to
ensure the plan's mitigation measures are effective, BLM failed to comply with
environmental regulations. Not so! NEP A does not prevent agencies from adopting
mitigation techniques and acknowledging they may be adjusted later depending on their
effectiveness. (See ROD at B-3 (AR 4837) (noting the Council on Environmental Quality
NEPA regulations require continual monitoring).) Thus, this contention is also to no
avail.
F. BLM did not prematurely commit agency resources.
NEP A regulations prohibit agencies from committing resources to a plan before
issuing an ROD. 40 C.F.R. § 1502.2(f). An agency cannot act to further a specific
proposal before analyzing the environmental effects of that proposal. In short, agencies
cannot adopt a policy of "destruction before decision." See St. John's United Church of
Christ v. Chicago, 502 F.3d 616, 630 (7th Cir. 2007). TRCP next argues that in issuing
the ROD for the Atlantic Rim Project, BLM unlawfully committed resources before it
25
completed an ROD for the Rawlins Plan, which would update the Great Divide Resource
Management Plan (RMP), the broad land use plan under which the Atlantic Rim Project
is governed. (TRCP PI.' s Mot. for Summ. 1. at 25.) As a consequence, TRCP argues,
overlapping issues were resolved in the ROD for the Atlantic Rim Project instead of the
ROD for the overarching Rawlins plan. I disagree.
In making its argument, TRCP ignores that BLM determined that a ROD for the
Rawlins Plan was unnecessary because the initial projections for development, or
"reasonably foreseeable development scenario" (RFD), serve as a tool to evaluate existing
management, and not a planning decision. (BLM Instruction Memorandum No. 2004-
089, Attachment 1-1 to 1-3 (AR 5311-13).) A 2004 internal memorandum defined how
BLM should interpret the existing Great Divide RMP. "The fact that the total number of
wells in an area may exceed the total number of wells projected in the selected alternative
does not automatically mean that a[n] ... amendment to the RMP is necessary." (FEIS at
0-259 (AR 4654).) Accordingly, the RMP did not need to be revised or amended,
because, as explained below, BLM determined the Atlantic Rim Project's ROD was
consistent with the broad predictions of the RFD. (See id.)
Furthermore, even if BLM had not issued the memorandum, BLM does not have a
duty to halt development while revising the RMP. ONRC Action v. BLM, 150 F.3d 1132,
1139 (9th Cir. 1998) (defining as "unfounded" an argument that outdated RMPs cannot
be existing program plans under NEP A and finding no "clear duty of when to revise the
26
plans, [or] to cease actions during such revisions"). "It may be that a thorough
examination of the current RMPs would reveal that revision of some of the land use plans
is warranted under the language of the regulations"; however, the BLM is not required to
cease actions during the revision process. Id. at 1140. Thus, BLM did not prematurely
commit resources in completing the EIS without completing the Rawlins Plan RMP.
G. BLM's analysis of the project's effects on mule deer was not arbitrary
and capricious.
TRCP next argues BLM failed to take the requisite "hard look" at the project's
effects on mule deer because it completed the final EIS and ROD before determining
baseline data regarding seasonal ranges and migration routes of mule deer.14 (TRCP PI.' s
Mot. for Summ. J. at 27 (citing Half Moon Bay Fishermans' Mktg. Ass 'n v. Carlucci, 857
F.2d 505,510 (9th Cir. 1988) and referencing Final Report for the Atlantic Rim Mule
Deer Study, Apr. 2007 (AR 7421).) Again, I disagree.
BLM did, in fact, consider the project's effects on mule deer. It specifically
discussed the effects of the project on mule deer populations, relying for its analysis on
other previously conducted studies concerning mule deer.ls As our Circuit Court has
stated: "Baseline or no baseline, the question is whether the [federal agency] has fully
14Although a study to identify the mule deer baseline data was in progress, it was not completed
until April 2007, four months after the EIS was finished in December 2006, and one month after
the ROD was signed in March 2007. (Compare Final Report for the Atlantic Rim Mule Deer
Study, Apr. 2007 (AR 7421) with FEIS (AR 2080) and ROD (AR 4791).)
15See FEIS at R-l to R-29 (listing references cited).
27
examined options calling for greater or lesser environmental protection." Conservation
Law Found. v. FERC, 216 F.3d 41,46 (D.C. Cir. 2000). In this case, the agency's
selection of a particular baseline did not prevent it from complying with NEPA because
BLM analyzed the environmental and economic costs of the action. See id. Thus the
Court cannot say BLM violated NEP A by failing to wait for a mule deer study funded by
members of the industry and prepared by a third party. See id. 16
II. BLM did not violate the Federal Land Policy and Management Act
The Federal Land Policy and Management Act requires agencies to manage public
lands to allow for multiple uses. Agencies must both protect the environment,17 43
U.S.C. § 1701(a)(8), and manage the land in such a way as to provide for domestic
16TRCP briefly argues that even assuming the EIS is lawful, the Catalina and Sun Dog projects
are unlawful because they allow the operators to request exemptions and waivers, when the
possibility of exemptions and waivers was not considered in the EIS. Thus, BLM never analyzed
the environmental effects of exemptions and waivers. This cursory, unsupported argument fails.
The Catalina and Sun Dog EAs merely note that "[i]n some instances, the proponent may request
consideration of a temporary exception to wildlife seasonal restrictions. Such an exception may
not be granted if a determination is made that the wildlife resource will not be adversely
impacted." (Sun Dog EA at 9 (AR 74071); Catalina EA at 9 (AR 73500).) The plaintiffs assert
BLM should have analyzed the environmental effects of granting an exemption or waiver request
despite not knowing what, if any, exemptions or waivers might be requested. As such, the
plaintiffs are demanding exactly the sort of "crystal ball" inquiry NEP A clearly does not require.
Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 534 (1978) ("NEPA does not require a
'crystal ball' inquiry." (internal quotation omitted».
17Specifically, FLPMA provides public lands shall be managed "in a manner that will protect the
quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water
resource, and archeological values; that, where appropriate, will preserve and protect certain
public lands in their natural condition; that will provide food and habitat for fish and wildlife and
domestic animals; and that will provide for outdoor recreation and human occupancy and use."
43 U.S.C. § 1701(a)(8).
28
sources of "minerals, food, timber, and fiber."18 43 U.S.C. § 1701(a)(l2). FLPMA also
requires agencies to develop land use plans, 43 U.S.C. § 1712(a), and to "manage the
public lands ... in accordance with [them]," 43 U.S.C. § 1732(a). The land use plan in
this case is the Great Divide Resource Management Plan. TRCP contends that BLM
violated FLPMA by acting inconsistently with FLPMA's multiple-use and sustained-yield
principles. For the following reasons, I disagree.
A. The project's effects on sage grouse do not indicate a violation of
multiple-use management.
TRCP first alleges BLM violated FLPMA' s goals of multiple use and sustained
yield because the project will result in "possibly irreversible" effects on sage grouse,
(TRCP Pl.'s Summ. J. Mot. at 33 (citing U.S. Fish and Wildlife Servo Memorandum, Jan.
5,2002 (AR 10134)), and a reduction in big game, (Id. at 7.) The Court first notes the
goals of multiple use and sustained yield are "guidelines." 43 U.S.C. §§ 1701(a)(7);
1712(a), 1712(c)(I); see also Norton V. S. Utah Wilderness Alliance, 542 U.S. 55, 58
(2004) (noting "FLPMA establishes a dual regime of inventory and planning" to
effectuate its broad management goals). Furthermore, these guidelines are used in
developing broad land use plans, not in developing more specific RODs. 43 U.S.C. §
1732(a). As the Interior Board of Land Appeals held, "[m]ultiple use is generally
considered in the context ofBLM's land-use planning"; therefore, "[alternate uses] need
18Specifically, FLPMA provides land shall be managed in a manner that "recognizes the Nation's
need for domestic sources of minerals, food, timber, and fiber from the public lands." 43 U.S.C.
§ 1701(a)(12).
29
not be considered anew each time BLM decides to lease the land or grant leave to
undertake an activity." S. Utah Wilderness Alliance Utah Chapter, Sierra Club, 122
IBLA 165, 172 (Interior Bd. of Land App. Feb. 7, 1992). Thus, TRCP's argument that
the ROD is inconsistent with FLPMA is misplaced. Id. While land use plans are
governed by FLPMA's broad principles, each individual project and parcel of land need
not, and cannot, reflect all FLPMA's purposes. See Rocky Mountain Oil and Gas Ass 'n v.
Watt, 696 F.2d 734, 738 (lOth Cir. 1982) (noting FLPMA requires BLM to "recognize
competing values" and that all values cannot be effectuated on a particular piece of land).
Despite this, even if the Court assumes, as TRCP argues, that BLM must manage
the Atlantic Rim Project Area in accordance with multiple-use and sustained-yield
principles because of its large size, (TRCP Pl.'s Consolidated Response to Cross-Mot. for
Summ. J. and Reply in Support of PI's Mot. for Summ. J. at 12), TRCP has not
demonstrated that the ROD itself was inconsistent with multiple-use and sustained-yield
principles. BLM clearly sought to balance the competing objectives of "recover[ing]
natural gas resources" and "protecting other resource values." (ROD at 10 (AR 4805).)
In selecting Alternative D, BLM believed that the alternative would "provide[] a good
balance between oil and gas recovery and resource protection and provide[] for long-term
reclamation and re-establishment of native vegetation and wildlife communities." (Id.)
The ROD also provides for mitigation measures that will "reduce direct and indirect
disturbance to wildlife" and "facilitat[e] the long-term return of habitat function." (ROD
30
at 9 (AR 4804).) These measures include "limiting allowable surface disturbance,
accelerated reclamation by the Operators, remote monitoring (telemetry), [and] timing
stipulations." (Id.) As such, BLM's actions, although not protective enough for TRCP's
taste, were not "inconsistent" with FLPMA's multiple-use and sustained-yield objectives.
And, as such, this argument is also to no avail.
B. The ROD is not inconsistent with the Great Divide Resource
Management Plan.
FLPMA requires BLM to "manage the public lands ... in accordance with ...
land use plans ... when they are available." 43 U.S.C. § 1732(a). Thus, "[a]ll future
resource management authorizations and actions ... shall conform to the approved plan."
43 C.F.R. § 161O.5-3(a); see also S. Utah Wilderness Alliance, 542 U.S. at 67. TRCP
next argues that the ROD is inconsistent with the RMP itself for three reasons: (1)
because the amount of drilling for the Atlantic Rim Project vastly exceeds the Great
Divide RMP's projections, (2) because the project is inconsistent with the RMP's
objectives to maintain vegetation and ecological quality, and (3) because BLM failed to
define mitigation and monitoring efforts in the ROD. I disagree.
The plaintiff first asserts that the amount of drilling for the Atlantic Rim Project so
exceeded the Great Divide RMP's projections that the project was not being managed "in
accordance with ... land use plans." 43 U.S.C. § 1732(a). To that end, TRCP points out
that the Great Divide RMP projected that 1,440 wells would be drilled, and while there
are a number of projects within the Great Divide RMP area, drilling for the Atlantic Rim
31
Project alone exceeds the projection by more than 25%. (TRCP Pl.'s Mot. for Summ. J.
at 42.) TRCP argues that exceeding the projection "by 25% with a single project (and by
as much as 1000% when projects are viewed cumulatively), is so far beyond the ...
projection as to render BLM in violation ofFLPMA's basic requirement that all project
level actions remain consistent with the governing RMP." (Jd.) How so?
While TRCP is correct that drilling for the Atlantic Rim project vastly exceeds the
RMP's projections, the RMP itself concluded that "[t]he entire planning area is open to
oil and gas leasing." (Great Divide Resource Area Record of Decision and Approved
Resource Management Plan, Nov. 1990 (RMP) at 30 (AR 679).) Furthermore, it is
important to note that BLM had determined previously that the RMP projection is not a
hard cap on drilling. As explained above, in the 2004 internal memorandum, BLM noted
the Great Divide RMP's projection of reasonably foreseeable development "is not a
management prescription" and does not "establish a limit on the number of oil and gas
wells that can be drilled in a resource area." (FEIS at 0-259 (AR 4654); FEIS at 0-271
(AR 4666)); see also S. Utah Wilderness Alliance, 542 U.S. at 69 (emphasizing that
"FLPMA describes land use plans as tools by which 'present and future use is projected'"
(quoting 43 U.S.C. § 1701(a)(2))). Having stated that the entire area was open to drilling,
the RMP's projection estimates do not limit the number of wells that can be drilled. The
Court is thus not persuaded by TRCP's argument that BLM acted arbitrarily and
capriciously in allowing the drilling of more wells than the RMP initially projected.
32
Second, TRCP argues the project is inconsistent with the Great Divide RMP's
objectives to maintain vegetation and ecological quality and to ensure the continued
availability of outdoor recreational opportunities because the project will have adverse
effects on big game and sage grouse and will displace hunting and recreation activities.
(TRCP Pl.'s Mot. for Summ. J. at 41-42.) However, BLM adopted a wildlife resource
management plan, which includes limiting surface disturbance to less than three miles in
grouse brood rearing or nesting habitat and big game crucial winter range, (FEIS at G-4
(AR 3057», directional drilling, drilling multiple wells from a single pad, seasonally
restricting public vehicular access, monitoring wells remotely, implementing techniques
and designs to reduce noise, burying power lines to avoid poles and other tall structures,
and numerous other activities, (FEIS at H-13 (AR 3093).) The FEIS also mandates that
"[n]o surface disturbance would be allowed in severe winter relief habitats for greater
sage-grouse." (FEIS at G-4 (AR 3057).). BLM thus took numerous actions in
furtherance of the Great Divide RMP's objectives to maintain vegetation and ecological
quality and to ensure the continued availability of outdoor recreational opportunities.
While the project will have some adverse effects on the environment and
recreational opportunities, the RMP, like FLPMA itself, has the additional objective to
provide for development. Indeed, the RMP establishes as an objective "[t]o provide
opportunity for leasing, exploration, and development of oil and gas while protecting
other resource values," (FEIS at 1-9 (AR 2136», and, as discussed above, provides that
33
"[t]he entire planning area is open to oil and gas leasing." (RMP at 30 (AR 679).)
Because BLM balanced the RMP's competing management objectives, and took steps to
ensure environmental protection, the ROD is not inconsistent with the RMP as a whole.
Finally, the plaintiff argues that BLM failed to define mitigation and monitoring
efforts in the ROD, and that, as a result, the ROD is per se inconsistent with the Great
Divide RMP. I disagree. The plaintiff makes this argument citing only a single,
unpublished case. The district court in that case, however, was not evaluating an
environmental impact statement in relation to the FLPMA. See W. Watersheds Project v.
us. Forest Serv., 2006 WL 292010 (D. Idaho 2006). In Western Watersheds Project, the
court found that because the agency did not explain the mitigation strategy, "the Court
[could not] tell from the administrative record whether or not the [agency] complied with
the Plan standards." Id. at 10 (quotation and alteration omitted). Here, however, BLM
described in detail the monitoring and mitigation plan in the ROD and the FEIS. (See
ROD at 20 (AR 4815) (discussing monitoring, reporting, and adaptive management);
FEIS at App. E (AR 4868-4881) (providing for the preliminary wildlife inventory,
monitoring, and protection protocol).) Additionally, as discussed above, BLM included
numerous mitigation measures to minimize the project's effect on wildlife. NRDC, 525
F. Supp. 2d at 121-22. Although, as TRCP points out, the ROD noted that BLM would
begin developing the specific details of the monitoring and mitigation process after
issuing the ROD, (ROD at 20 (AR 4815», BLM nevertheless fully explained the overall
34
strategy and protocols sufficient to enable the Court to determine that the ROD is in
compliance with plan standards. Cf W. Watersheds Project, 2006 WL 292010 (D. Idaho
2006). Therefore, the project is not inconsistent with the Great Divide RMP based on an
alleged failure of mitigation measures.
CONCLUSION
Thus, for all of the foregoing reasons, this Court DENIES the plaintiffs' summary
judgment motions and GRANTS the defendants' summary judgment motions. An Order
consistent with this opinion is attached.
RICHARD. ON
United States District Judge
35