Powder River Basin Resource Council v. United States Bureau of Land Management

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Powder River Basin Resource Council, et
al.,
Plaintiffs, Civil Action No. 12-cv-00996 (BJR)
v. MEMORANDUM DECISION
United States Bureau of Land Management,
et al.,
Defendants.
I. Introduction
Before the Court is a challenge by Powder River Basin Resource Council and two other
conservation groups (“the Plaintiffs”) to decisions by the United States Bureau of Land
Management (“BLM”) related to the Fortification Creek Planning Area (“FCPA” or “Planning
Area”) in the greater Powder River Basin in northeastern Wyoming.1 The Plaintiffs claim that
BLM, caving in to the demands of the coal bed natural gas (“CBNG”) industry, abandoned
efforts to protect an elk herd and other valuable resources, and approved an amendment to the
applicable land use plan and a plan for developing a CBNG lease without adequately analyzing
the potential environmental impacts of those actions. The defendants are BLM, Sally Jewell, the
Secretary of the Department of the Interior, Donald Simpson, Wyoming State Director of BLM,
and Duane Spencer, the Buffalo Field Office Manager of BLM (collectively, the “Federal
Defendants”). The State of Wyoming and Lance Oil & Gas Company, Inc. (“Lance Oil”) have
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The two other plaintiffs are Wyoming Outdoor Council and National Wildlife Federation.
both intervened as defendants. Pending before the Court are cross-motions for summary
judgment filed by all parties.
Specifically, the Plaintiffs challenge the adequacy of BLM’s Environmental Assessment
(“EA”) and BLM’s Finding of No Significant Impact (“FONSI”) for the Fortification Creek
Resource Management Plan Amendment (“RMPA”). Plaintiffs also challenge BLM’s approval
of the Yates Petroleum Corporation Queen B Plan of Development (“Queen B POD”), a 16-well
drilling-stage project. The Plaintiffs seek declaratory and injunctive relief pursuant to the
Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq., for violations of the National
Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq., and NEPA’s implementing
regulations promulgated by the Council on Environmental Quality (“CEQ”), 40 C.F.R.
§§ 1500.1 et seq. In particular, the Plaintiffs request that the Court declare that BLM’s actions
violate NEPA, set aside those actions, void already approved plans of development (“PODs”),
including the Queen B POD, and suspend and enjoin all approved and future oil and gas
development permitted by BLM in the FCPA pending full compliance with NEPA.
II. Background
A. Glossary
2007 Elk Report: An environmental report issued by BLM that analyzed the
potential impacts of CBNG development on the Fortification
Creek elk herd. AR 004630; 004634.
2008 Elk Monitoring Plan: This document was attached to the 2008 draft RMPA/EA. It
set forth a draft monitoring plan that fixed thresholds for elk
habitat loss and elk population reduction which, if exceeded,
BLM would consider “biologically significant.” AR 009099-
009104.
Crucial Seasonal Range (or
Crucial Range): Any particular seasonal range or habitat component which has
been documented as the determining factor in a population’s
ability to maintain or reproduce itself at a certain level. The
crucial ranges for elk are the crucial winter range and the
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parturition (or calving) range. AR 004633.
Direct Habitat Loss: This occurs when required life-sustaining conditions are lost,
such as when vegetation is removed during the construction of
a road. AR 018647.
EA: Environmental assessment.
Effective Habitat: Habitat that is available to the elk herd. AR 004652. The elk
will abandon or avoid an area once a certain level of
disturbance from human activity is reached. AR 018647.
These avoided areas result in a de facto loss of habitat. Id.
Effective habitat is that habitat actually available to wildlife,
namely, the habitat that has not been destroyed (direct habitat
loss) and that does not have so much disruption that the
wildlife avoid it. Id. The amount of effective habitat loss
usually exceeds the amount of direct habitat loss. AR 018648.
EIS: Environmental impact statement.
FONSI: Finding of No Significant Impact.
Fortification Creek Planning
Area (“FCPA” or “Planning
Area”):
A 100,655-acre area located within the Powder River Basin in
Northeastern Wyoming. AR 018481. BLM makes decisions
about mineral development within the boundaries of the FCPA.
Plan of Development
(“POD”): A plan for a group of wells and their supporting infrastructure
(such as roads, pipelines, power lines, water discharge points,
booster stations, and compressor stations) for a geographic
area. AR 026932.
Resource Management Plan
(“RMP”): A resource management plan “describes, for a particular area,
allowable uses, goals for future condition of the land, and
specific next steps.” Norton v. S. Utah Wilderness Alliance,
542 U.S. 55, 59, 124 S. Ct. 2373, 2377, 159 L. Ed. 2d 137
(2004). Specific projects or actions must conform to the
relevant resource management plan. 43 C.F.R. § 1610.5–3(a);
see Theodore Roosevelt Conservation P’ship v. Salazar, 616
F.3d 497, 504 (D.C. Cir. 2010).
Security Habitat: A place for wildlife to escape from disturbance. AR 018647.
Security habitat is usually defined in terms of patches of a
certain minimum size. Id. It is a subset of effective habitat.
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AR 004652.
Southern Range: That portion of the elk herd’s yearlong range that extends
south of the boundary of the Fortification Creek Planning
Area. AR 018646.
Yearlong Range: Where a population of animals makes general use of suitable
habitat sites within the range on a year round basis. AR 04633.
The Fortification Creek elk’s yearlong range includes the
herd’s smaller crucial range. AR 018483. The herd’s
yearlong range includes the FCPA and the southern range.
WGFD: The Wyoming Game and Fish Department, which manages the
elk herd in the Fortification Creek Planning Area. AR
006785.
Wilderness Study Area
(“WSA”): A 12,832-acre area within the elk herd’s crucial range in the
Fortification Creek Planning Area which is to remain free of
mineral development. AR 004629.
B. The Fortification Creek Planning Area and the Fortification Creek Elk Herd
The Planning Area, the 100,655-acre area in northeastern Wyoming within which BLM
makes decisions related to mineral development, is not a discrete area of public land such as a
park, but is rather an administrative area created to form boundaries for certain decision-making
by BLM, primarily related to mineral development. Federal Defendants’ Cross Motion for
Summary Judgment (“Fed. Defs.’ Mtn.”) (Dkt. No. 36) at 1. The Planning includes private,
state, and federal lands.2 AR 018474. The landscape contains prairie, sagebrush shrubland, and
juniper forest. AR 006803. Significantly for this case, the Planning Area is home to an isolated,
non-migratory herd of Rocky Mountain Elk, known as the Fortification Creek herd. AR 018479.
The current herd was established in the early 1950s when the Wyoming Game and Fish
Department (“WGFD”) and BLM introduced elk from Yellowstone National Park after the
area’s original elk population had been killed off. AR 018561. In 1981, the WGFD set a
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Within the FCPA is a 12,419-acre Wilderness Study Area (“WSA”). No mineral development
in the WSA is currently permissible. AR 018481; see also Fed. Defs.’ Mtn. at 2.
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population management objective of 150 elk. Id. As of 2011, there were an estimated 210 elk in
the Fortification Creek herd. AR 020802. The herd is managed by the WGFD. AR 006785.
BLM considers the elk in the Fortification Creek herd “a species of interest because of their
history, isolation, and hunting importance.” AR 018561.
Over the course of the year, the elk herd roams both within the Planning Area and beyond
the boundaries of the Planning Area. The elk herd’s yearlong range, which is the core use area
for the herd, extends south of the limits of the Planning Area. AR 018646. The southern area of
the elk herd’s yearlong range that is outside of the Planning Area is called the herd’s “southern
range.” AR 018672. Within the yearlong range, the elk herd has “crucial seasonal ranges.” AR
018646. The crucial ranges are areas of habitat that are determinative of the elk population’s
ability to maintain itself at a certain level. AR 004633. The crucial range is comprised of the
crucial winter range and the parturition (or calving) range. AR 018646. (The map at the end of
this section diagrams the yearlong range, crucial ranges, and the boundaries of the Planning
Area.) See AR 019209.
The Planning Area is within BLM’s Buffalo Management Area and therefore is subject to
BLM’s Buffalo Resource Management Plan (“RMP”), the first version of which was issued in
1985. AR 006781; Fed. Defs.’ Mtn. at 3. Oil and gas leasing in the Powder River Basis has
been ongoing since before 1985 and currently the Planning Area is nearly completely leased.
AR 018481. CBNG has replaced conventional oil and gas development as the dominant form of
mineral development throughout the Powder River Basin (“PRB”). AR 018480. As of 2011,
there were 480 wells in the Planning Area. AR 018586.
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C. The 2008 RMPA/EA
In August 2008, BLM issued its Draft Buffalo Resource Management Plan Amendment
and Fortification Creek Management Area Environmental Assessment (“2008 Draft
RMPA/EA”). AR 009660-61. The 2008 draft RMPA/EA proposed a prescriptive, phased
development approach. See AR 008810. Under this draft plan, BLM would allow oil and gas
development under prescriptive guidelines, meaning that the oil and gas development would
have to meet specific requirements. AR 008810. In addition, development would only occur in
one-third of the Planning Area at a time. AR 008810, 008993-99. Attached as an appendix to
this draft RMPA/EA was an Elk Monitoring Plan (“2008 Elk Monitoring Plan”). AR 009099-
009104.
Oil and gas lessees expressed concerns that the prescriptive approach proposed in the
2008 draft RMPA/EA would restrict access to their leases in the Planning Area while other
members of the public raised concerns about the protection of the elk herd. AR 018475. These
concerns prompted BLM to reconsider its alternatives and, in 2011, BLM issued a new draft
RMPA/EA.
D. The 2011 RMPA/EA and the Proposed Action
This 2011 RMPA/EA is the RMPA/EA at issue in this case. It analyzed three
alternatives, including the Proposed Action. AR 018492-96.
The first alternative that BLM evaluated was the “no action” alternative. NEPA requires
agencies to evaluate a “no action” alternative, 40 C.F.R. § 1502.14(d), which “serves as a
benchmark” for comparing the other alternatives. Theodore Roosevelt Conservation P’ship v.
Salazar, 744 F. Supp. 2d 151, 160 (D.D.C. 2010), aff’d, 661 F.3d 66 (D.C. Cir. 2011). Under
this alternative, BLM would manage the Planning Area according to existing management
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direction. AR 018492. Development of the CBNG leases would proceed without any changes to
the land planning approach and the pace of CBNG development would not be restricted. AR
018475, 018493. Alternative II represents a “prescription-based approach” under which BLM
specifies the conditions for oil and gas development. AR 018495. The approach is
“prescriptive” in the sense that BLM would set firm guidelines for development. For instance,
under this approach, CBNG development would be prohibited on certain steep slopes and water
management facilities and compressors would be located outside crucial ranges. AR 018495.
Pursuant to Alternative II, the oil and gas development would be confined to one-third of the
Planning Area at a time, leaving the rest of the area free of disturbance. AR 018496.
Finally, BLM analyzed Alternative III, which is the alternative BLM ultimately adopted
as the Proposed Action. AR 018496. The Proposed Action is a performance-based approach for
managing oil and gas development in the FCPA. Id. The Proposed Action defines performance
standards and the plans of development submitted by oil and gas operators must comply with
these standards in order to be approved. Id. As compared to Alternative II, the Proposed Action
gives the operators more leeway as to how they can develop their drilling projects, so long as the
impacts from the development do not exceed the performance standards. Although Alternative
III incorporates phased development in the sense that oil and gas operators will confine their
development to a small geographic area annually, it does not limit development to one-third of
the Planning Area at a time. AR 018496. BLM will closely monitor the CBNG operators’
compliance with the performance standards and may authorize more drilling if the performance
standards are being met or less drilling if the performance standards are not met. Id. These
performance standards, which relate to such metrics as elk population size and the amount of
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available undisturbed elk habitat, act as safeguards to “ensure a bottom threshold” and “set[] the
amount of allowable impact as moderately adverse.” AR 018668, 019270.
To analyze and compare the impacts on the elk herd from each of the three alternatives
for land management, BLM first chose an “impact analysis area.” AR 018646. BLM selected
the area within the boundary of the Planning Area as its “impact analysis area.” Id. The
selection of the Planning Area as the “impact analysis area” meant that the elk herd’s southern
range, which is outside of the Planning Area, was not included in the “impact analysis area.” Id.
BLM then predicted the amount of development that would occur in the Planning Area under
each alternative and the resulting impacts to elk habitat within the Planning Area. AR 018648-
71. In the following section of the RMPA/EA, BLM looked beyond the boundaries of the
Planning Area and analyzed how development in the southern range would impact the amount of
elk security habitat in the southern range. AR 018672-75. The RMPA/EA then discussed how
development in the southern range and its accompanying impacts on elk habitat would affect the
elk within the Planning Area. AR 018674-75.
In March 2011, BLM issued a draft Finding of No Significant Impact (“FONSI”).3 AR
018461. Because BLM reached a FONSI with respect to the Proposed Action, it did not prepare
an environmental impact statement (“EIS”) for the Proposed Action. See 40 C.F.R. § 1501.4(e)
(agency shall prepare a FONSI if it determines that no EIS is required). On August 5, 2011,
BLM issued a Decision Record that adopted Alternative III as the Proposed Action and restated
its FONSI. AR 019206-08.
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In April 2011, the Powder River Plaintiffs filed a Protest of the Planning Area RMPA and
associated EA and FONSI with the BLM Director. AR 019093. On August 8, 2011, BLM
released the Director’s Protest Resolution Report which rejected the issues and comments raised
by the Plaintiffs. AR 019309 et seq.
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E. The Queen B POD
In the meantime, BLM had been reviewing Yates Petroleum Corporation’s proposed
development of sixteen wells in what is known as the Queen B POD, an area that is partially
within the Planning Area. AR 020770. BLM issued a Decision Record, FONSI, and EA for the
Queen B project and authorized all but one of the wells in the Queen B project. AR 020763; AR
020766; AR 020770 et seq.
III. Standard of Review
The APA governs judicial review of agency action taken under NEPA. Theodore
Roosevelt Conservation P’ship v. Salazar, 661 F.3d 66, 72 (D.C. Cir. 2011). The APA instructs
the reviewing court to “hold unlawful and set aside agency action, findings, and conclusions
found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A). The standard of review is narrow, and “[t]he court is not
empowered to substitute its judgment for that of the agency.” Citizens to Pres. Overton Park,
Inc. v. Volpe, 401 U.S. 402, 416, 91 S. Ct. 814, 824, 28 L. Ed. 2d 136 (1971), abrogated on other
grounds by Califano v. Sanders, 430 U.S. 99, 104, 97 S. Ct. 980, 984, 51 L. Ed. 2d 192 (1977).
Instead, the court is “principally concerned with ensuring that [the Agency] has ‘examine[d] the
relevant data and articulate[d] a satisfactory explanation for its action including a rational
connection between the facts found and the choice made,’ that the Agency’s ‘decision was based
on a consideration of the relevant factors,’ and that the Agency has made no ‘clear error of
judgment.’” Bluewater Network v. EPA, 370 F.3d 1, 11 (D.C. Cir. 2004) (quoting Motor Vehicle
Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S. Ct. 2856,
2866, 77 L. Ed. 2d 443 (1983)).
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IV. Discussion
Broadly speaking, the Plaintiffs make the following arguments: (1) that BLM failed to
take a hard look at impacts on the elk herd; (2) that BLM failed to take a hard look at the impacts
on water resources, (3) that BLM failed to prepare a supplemental NEPA analysis even though
there was potentially significant new information; (4) that BLM failed to take a hard look at the
impacts on soil resources; (5) that BLM’s NEPA analysis for the Queen B POD is unlawful for
the same reasons as argued with respect to the RMPA/EA; and (6) that BLM failed to consider a
true “no action” alternative in the RMPA/EA.
A. The National Environmental Policy Act (NEPA)
Under NEPA, federal agencies are required to prepare an EIS for “major Federal actions
significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C); see
Sierra Club v. Van Antwerp, 661 F.3d 1147, 1153 (D.C. Cir. 2011). “If any ‘significant’
environmental impacts might result from the proposed agency action then an EIS must be
prepared before the action is taken.” Sierra Club v. Peterson, 717 F.2d 1409, 1415 (D.C. Cir.
1983). The Council on Environmental Quality (“CEQ”) promulgated regulations that implement
NEPA. See 40 C.F.R. § 1500.1.
To determine whether an EIS is required, the agency prepares an environmental
assessment (“EA”). 40 C.F.R. §§ 1501.4, 1508.9. The agency need not prepare an EIS if the EA
provides a basis for finding that there will be no significant impacts to the environment. 40
C.F.R. § 1501.4(e); see also Sierra Club v. Peterson, 717 F.2d at 1412-13. An agency’s FONSI
and its resulting decision not to prepare an EIS can be set aside only if the decision was arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law. Sierra Club v. Van
Antwerp, 661 F.3d at 1154. In reviewing a FONSI, the court determines whether the agency
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(1) has accurately identified the relevant environmental concern, (2) has taken a
hard look at the problem in preparing its [FONSI or Environmental Assessment],
(3) is able to make a convincing case for its finding of no significant impact, and
(4) has shown that even if there is an impact of true significance, an EIS is
unnecessary because changes or safeguards in the project sufficiently reduce the
impact to a minimum.
Id. at 1153-54 (quoting TOMAC, Taxpayers of Mich. Against Casinos v. Norton, 433 F.3d 852,
861 (D.C. Cir. 2006)).
The court’s role in reviewing an agency’s decision not to issue an EIS is “to ensure ‘that
no arguably significant consequences have been ignored.’” TOMAC, 433 F.3d at 860 (quoting
Pub. Citizen v. Nat’l Highway Traffic Safety Admin., 848 F.2d 256, 267 (D.C. Cir. 1988)). In
making this determination, the court must make certain that the agency took the requisite “hard
look” at potential impacts. Id. at 861, 863. The D.C. Circuit has recognized that “the contours of
the ‘hard look’ doctrine may be imprecise.” Nevada v. Dep’t of Energy, 457 F.3d 78, 93 (D.C.
Cir. 2006). Nevertheless, the court’s task is to “ensure that the agency has adequately considered
and disclosed the environmental impact of its actions and that its decision is not arbitrary or
capricious.” Id. at 93 (quoting Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S.
87, 97–98, 103 S. Ct. 2246, 2252, 76 L. Ed. 2d 437 (1983)) (internal quotation marks omitted).
B. BLM Took a Hard Look at the Impacts on the Elk Herd
1. The RMPA/EA adequately analyzes the cumulative impacts of development in the
southern range on the elk.
The Plaintiffs make numerous arguments alleging that BLM failed to take a “hard look”
at the cumulative impacts of the Proposed Action on the elk herd’s southern range and instead
“evaluated the project in a vacuum.” Plaintiffs’ Motion for Summary Judgment (Dkt. No. 30)
(“Pls.’ Mtn.”) at 17-18. As explained above, part of the elk herd’s yearlong range (including
portions of the herd’s crucial ranges) extends south of the limits of the Planning Area and the
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parties refer to this as the herd’s “southern range.” AR 018646. In the RMPA/EA, BLM
selected the boundary of the Planning Area as the “impact analysis area,” which is the area that
BLM used for predicting the impacts from the various alternatives. AR 018646 (“For purposes
of analysis, the yearlong and crucial ranges within the boundaries of the FCPA will be the
analysis area for elk.”). The Plaintiffs take issue with the exclusion of the southern range from
the “impact analysis area.”
An EA must include a “brief discussion[] . . . of the environmental impacts of the
Proposed Action.” 40 C.F.R. § 1508.9(b). Environmental impacts may be direct, indirect or
cumulative. 40 C.F.R. §§ 1502.16, 1508.7, 1508.8. A cumulative impact
is the impact on the environment which results from the incremental impact of the
action when added to other past, present, and reasonably foreseeable future
actions regardless of what agency (Federal or non-Federal) or person undertakes
such other actions. Cumulative impacts can result from individually minor but
collectively significant actions taking place over a period of time.
40 C.F.R. § 1508.7. Moreover, “the agency’s EA must give a realistic evaluation of the total
impacts and cannot isolate a proposed project, viewing it in a vacuum.” Grand Canyon Trust v.
FAA, 290 F.3d 339, 342 (D.C. Cir. 2002).
Several of the Plaintiffs’ contentions regarding BLM’s analysis of cumulative impacts on
the elk herd are clearly not supported by the record. First among these is the Plaintiffs’ argument
that the RMPA/EA did not analyze impacts on the elk herd’s southern range at all. Pls.’ Mtn. at
18. The RMPA/EA explicitly considered the impacts of CBNG development on the elk herd’s
southern range in the cumulative impacts analysis. AR 018671-75. In that analysis, BLM
compared the amount of available elk security habitat in the Planning Area, the yearlong range,
and the southern range. AR 018672. That comparison revealed that 34% of the security habitat
within the elk’s yearlong range is located in the southern range and that, after reasonably
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foreseeable development, 63% of the elk’s security habitat within the herd’s southern range
would be lost. AR 018672-74. Accordingly, the RMPA/EA clearly analyzed the impacts of
development on the elk herd’s southern range.
Second, the Plaintiffs’ assertion that the RMPA/EA only considered elk security habitat
within yearlong and crucial ranges is not accurate. Pls.’ Mtn. at 24-26. The RMPA/EA
evaluated direct habitat loss (in the form of linear road miles and road density), effective habitat,
and security habitat within the Planning Area. See AR 018652-53 (chart comparing the amount
of these three categories of habitat under each of the three alternatives and the baseline). BLM’s
analysis was not limited to 30,716 acres of crucial range and 8,807 acres of yearlong range, as
the Plaintiffs contend. Pls.’ Mtn. at 26. Rather, the EA expressly considered impacts to 78,251
acres of the herd’s yearlong range within the Planning Area and 20,477 acres of the herd’s
security habitat within the southern range. AR 018652; 018673-74.
Third, the record belies the Plaintiffs’ repeated suggestion that BLM changed the
geographic scope of its analysis from earlier versions of the EA. See Pls.’ Mtn. at 19 (“BLM
abandoned the southern range from its RMPA EA analysis.”); Plaintiffs’ Consolidated Response
and Reply (Dkt. No. 38) (“Pls.’ Reply”) at 5. The 2008 Draft RMPA and the final RMPA/EA
both evaluated the same area for impacts, namely, the area within the boundary of the Planning
Area. See AR 008981; AR 018646. Only an environmental report that BLM released in 2007
regarding the effects of CBNG development on the Fortification Creek elk herd (the “2007 Elk
Report) used the entire yearlong range as the geographic area for its analysis. AR 004630;
004634.
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2. The agency’s use of security habitat as the metric for evaluating impacts on the
southern range was reasonable.
The Plaintiffs go on to argue BLM erred in considering only security habitat when
“calculating the cumulative impacts of CBNG development on elk in the FCPA.” Pls.’ Reply at
12. As discussed above, BLM undertook two different analyses. First, in evaluating the
environmental consequences of each of the three alternatives in the Planning Area, BLM
analyzed three kinds of habitat loss that could impact the elk herd: direct habitat loss, effective
habitat loss, and security habitat loss. AR 018652-53. Second, when BLM turned to the analysis
of the cumulative impacts of development on the herd’s southern range, the agency focused only
on the amount of elk security habitat that would be lost in the herd’s southern range as a result of
reasonable foreseeable development. AR 018672-74. The Plaintiffs dispute the adequacy of this
second analysis. In particular, the Plaintiffs contend that BLM should have analyzed the
cumulative impacts of development in the southern range on all types of elk habitat within the
southern range, not just security habitat. Pls.’ Reply at 12.
Agencies are afforded discretion to use their expertise to determine the best method to
evaluate the significance of an impact to a particular resource, so long as that method is
reasonable. Sierra Club v. U.S. Dep’t of Transp., 753 F.2d 120, 128 (D.C. Cir. 1985) (“It is
clearly within the expertise and discretion of the agency to determine proper testing methods.”);
see also Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 289 (4th Cir. 1999)
(“Agencies are entitled to select their own methodology as long as that methodology is
reasonable. The reviewing court must give deference to an agency’s decision.”). Given the
crucial importance of security habitat to the viability of the elk herd, it was reasonable for BLM
to focus on loss of security habitat in the southern range. The RMPA/EA explains that
“[s]ecurity habitat is necessary for maintaining this herd because elk are expected to move to
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security patches in response to development.” AR 018672; see also AR 018656 (“If adequate
security habitat is not available within the FCPA and/or the WSA, it is likely that some elk will
flee the area and may or may not return as has been observed with the collared elk”). The
WGFD has “underscored the importance of the security habitat in the crucial winter and
parturition ranges to the Fortification Creek elk.” AR 018672. BLM’s decision to measure
impacts to the southern range using loss of security habitat was reasonable, because that is the
type of habitat “necessary for maintaining this herd.” Id.; see also TOMAC, 433 F.3d at 863
(finding that the agency’s decision to model impacts primarily for one pollutant was reasonable,
because that pollutant was the one most likely to have a significant impact on air quality).
3. BLM’s selection of the geographic scope for analysis was reasonable.
Building on the previous two arguments, the Plaintiffs argue that BLM should have
chosen the elk herd’s yearlong range as its analysis area for cumulative impacts. Pls.’ Reply at 5.
In support, the Plaintiffs cite to a memorandum from BLM’s Wyoming State Director
recognizing that “[t]he southern yearlong range and the planning area are interrelated and
interconnected with regards to elk.” AR 021634; see also Pls.’ Reply at 5. The Plaintiffs’
primary complaint is that BLM’s exclusion of the southern range from the scope of analysis
allowed BLM to avoid having to prepare an EIS. Pls.’ Reply at 9. Specifically, the Plaintiffs
assert that BLM’s impact predictions are “misleading” and “deceptive[]” because the impacts
from development in the southern range are not analyzed. Pls.’ Reply at 8-10.
As this Court has already discussed, the Plaintiffs’ argument that the RMPA/EA fails to
analyze the cumulative impacts of development in the southern range does not have merit. But
to the extent the Plaintiffs’ argument is actually a challenge to BLM’s decision to use the
boundary of the Planning Area as its “impact analysis area,” this challenge also fails. “The
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‘identification of the geographic area’ within which a project’s impacts on the environmental
resources may occur ‘is a task assigned to the special competency of the appropriate agencies.’”
Tri-Valley CAREs v. U.S. Dep’t of Energy, 671 F.3d 1113, 1127 (9th Cir. 2012) (quoting Kleppe
v. Sierra Club, 427 U.S. 390, 414, 96 S. Ct. 2718, 49 L. Ed. 2d 576 (1976)). Furthermore,
“[e]ven if environmental interrelationships could be shown conclusively to extend across” a
greater geographic scope than that selected by the agency, “practical considerations of feasibility
might well necessitate restricting the scope of comprehensive statements.” Kleppe, 427 U.S. at
414, 96 S. Ct. at 2732.
BLM’s decision to confine the geographic area for its environmental impacts analysis to
the boundaries of the FCPA was reasonable. See Idaho Sporting Cong., Inc. v. Rittenhouse, 305
F.3d 957, 973 (9th Cir. 2002) (“[T]he choice of analysis scale must represent a reasoned decision
and cannot be arbitrary.”). It is important to keep in mind that the Proposed Action, the RMPA,
is an amendment to the RMP for the Planning Area. The RMPA governs whether and how BLM
will authorize drilling and related development within the Planning Area. Any actions that the
RMPA would authorize would necessarily occur within the Planning Area. Federal Defendants’
Reply (Dkt. 42) (“Fed. Defs’ Reply”) at 6. BLM was still required to take into account impacts
from development outside of the Planning Area, see 40 C.F.R. § 1508.7, but as previously
discussed, BLM complied with this requirement. Therefore, it is rational for BLM to choose the
boundary of the area the Proposed Action will govern as the area for analyzing impacts. In
addition, the Planning Area boundary is the same boundary that has been used in previous land
use management decisions involving the Fortification Creek Planning Area. AR 018825.
Moreover, the record shows that the elk rely largely on the Planning Area for their
habitat. A majority of the herd’s security habitat within its yearlong range (66%) is within the
17
Planning Area, and 79% of the herd’s security habitat within its crucial ranges is within the
Planning Area. AR 018672. In 2007, the Wyoming Game and Fish Department noted that the
elk herd has shifted away from the southern range. AR 004366. The 2007 Elk Report
commented that “the northern half of the FCA is largely supporting 230 elk.” AR 004646; see
also AR 019207, 019209 (Decision Record reporting that the great majority of the habitat used
by the elk was in the Planning Area).
Idaho Sporting Congress, Inc. v. Rittenhouse, 305 F.3d 957 (9th Cir. 2002), on which the
Plaintiffs rely, is not on point. In that case, the Ninth Circuit invalidated a Forest Service EIS,
because the Forest Service used the “home range” rather than the “landscape scale” of several
species as the cumulative effects area. Idaho Sporting Cong., Inc., 305 F.3d at 973. The choice
of the “home range” as the impacts analysis area was arbitrary and capricious because it “ignored
the detailed and well-supported conclusions of [the agency’s] own scientists that cumulative
effects analysis of the species at issue ‘must be addressed at a landscape scale.’” Id. at 973.
Here, the Plaintiffs have not pointed to any evidence in the record demonstrating that the impacts
analysis area of the elk herd should be expanded to include its southern range.
Related to this argument, the Plaintiffs maintain that BLM “skewed” the percentages of
habitat that would be affected by development by excluding the southern range from the impacts
analysis, and that this skewed analysis allowed BLM to make its FONSI. Pls.’ Mtn. at 17, 21. In
particular, the Plaintiffs assert that “when reasonable foreseeable development . . . from the
herd’s southern range is combined with habitat loss allowed by Alternative III of the RMPA, the
20% significance thresholds established by the 2007 Elk Report are exceeded.” Pls.’ Mtn. at 21.
In support of this argument, the Plaintiffs put together two data tables purporting to show that
when this analysis is carried out, the Proposed Action authorizes a 33% loss of the elk herd’s
18
total habitat across its yearlong range, including a 20% loss of total crucial elk habitat. Pls.’
Mtn. at 22-23.
As a matter of clarification, the “20% thresholds” referred to by the Plaintiffs are actually
the thresholds set forth in 2008 draft Elk Monitoring Plan that was attached to the 2008 draft
RMPA/EA. See AR 09099-9104. This 2008 Elk Monitoring Plan established “thresholds for
which impacts should not exceed” and stated that exceeding these thresholds would be
“biologically significant.” AR 09100-02. With respect to habitat loss, the 2008 Elk Monitoring
Plan states that a threshold would be reached if “direct habitat loss exceeded 20% from current
levels” or “habitat effectiveness (indirect habitat loss) decreased more than 20% from current
levels.” AR 009103. The Plaintiffs argue that when the impacts to the southern range are
combined with the impacts to the Planning Area, these 20% thresholds would be exceeded.
However, the 2008 draft Elk Monitoring Plan is just that: a draft report attached to a draft
RMPA/EA.4 AR 008837 (specifying that the report is a “draft elk monitoring plan.”). It was not
adopted in the final RMPA/EA. Instead, the RMPA/EA incorporates a different plan setting
forth the seven criteria that BLM and the State of Wyoming will monitor to ensure the objectives
for the elk herd’s health are met.5 AR 019270. In addition, the 2008 Elk Monitoring Plan was
developed to “identify indicators of change, acceptable thresholds, methodologies, protocols, and
timeframes that would be used to evaluate and determine whether desired outcomes are being
achieved.” AR 008837. The thresholds were not developed to establish significance under
NEPA.
4
Contrary to the implication in the Plaintiffs’ Reply, the 2007 Elk Report does not establish
thresholds for significance. See Pls.’ Reply at 17; AR 004626-76.
5
The Plaintiffs’ argument that BLM “abandoned” the “straightforward thresholds” in the 2008
Elk Monitoring Plan is not accurate. The performance standards set measurable thresholds that
BLM will monitor. AR 019270; Pls.’ Reply at 18.
19
Moreover, the percentages calculated in the data tables created by the Plaintiffs cannot be
compared to the threshold percentages in the 2008 draft Elk Monitoring Plan because they refer
to different types of habitat. The habitat loss figures in the Plaintiffs’ tables describe impacts to
the elk herd’s security habitat. Pls.’ Mtn. at 21. However, the 2008 Elk Monitoring Plan did not
establish thresholds for security habitat. AR 009102-03. Consequently, the Plaintiffs’
estimations of the loss of elk security habitat cannot be analyzed under the thresholds in the 2008
Elk Monitoring Plan, because those thresholds do not address loss of security habitat.6
The Plaintiffs counter that any shortcomings in their analysis of the data are purely the
fault of BLM, which has made it “impossible” for the Plaintiffs to determine the total amount of
direct habitat loss or habitat effectiveness in the southern range, because BLM did not analyze
those types of habitat impacts for the southern range. Pls.’ Reply at 19. But just because BLM
did not undertake the methodology the Plaintiffs prefer does not make the methodology
unreasonable. See Sierra Club v. U.S. Dep’t of Transp., 753 F.2d at 128 (finding that the
agency’s decision to analyze cumulative noise level rather than individual event noise level was
entitled to discretion because determining the proper testing methodology is within the agency’s
expertise); see also Nat’l Comm. for the New River, Inc. v. FERC, 373 F.3d 1323, 1327 (D.C.
Cir. 2004) (“When an agency is evaluating scientific data within its technical expertise, an
extreme degree of deference to the agency is warranted.” (internal quotations omitted)).
6
The 2008 RMPA/EA (to which the 2008 Elk Monitoring Plan was attached) set a 20%
threshold for loss of elk security habitat. However, that threshold was with respect to loss of
security habitat within the Planning Area, not within the southern range, and the Plaintiffs do not
contend that their analysis shows that the 20% threshold is exceeded in the Planning Area. See
AR 08957; 08981; 08998.
20
4. BLM’s methodology for evaluating elk effective habitat was reasonable.
The Plaintiffs contend that BLM failed to take a hard look at impacts to elk because it did
not accurately predict the effective habitat impacts from CBNG well development. Pls.’ Reply at
11. Specifically, the Plaintiffs are concerned with the following analysis: BLM identified that
elk avoid areas within 1.7 miles of oil, natural gas, and CBNG wells and 0.5 miles of roads. AR
018648, AR 004636. But, when analyzing the impact of CBNG development scenarios on elk
habitat, BLM considered effective habitat as “elk ranges that were 0.5 miles from roads.” AR
018648-49. Therefore, the Plaintiffs contend that the agency’s effective habitat analysis was
limited to impacts from road density, at 0.5 miles, and that BLM failed to analyze impacts from
development of CBNG wells, which elk avoid by 1.7 miles. Pls.’ Reply. at 11. In other words,
the Plaintiffs argue that BLM underestimated the amount of impacted effective habitat by not
including a 1.7-mile avoidance area around CBNG wells. Id.
This argument fails. “[A]gency determinations receive ‘an extreme degree of deference
[when] they involve complex judgments about sampling methodology and data analysis that are
within the agency’s technical expertise.’” Alaska Airlines, Inc. v. Transp. Sec. Admin., 588 F.3d
1116, 1120 (D.C. Cir. 2009) (quoting Kennecott Greens Creek Mining Co. v. Mine Safety &
Health Admin., 476 F.3d 946, 956 (D.C. Cir. 2007)). Here, BLM provided a reasoned
explanation for its method of predicting impacts to effective habitat, explaining that it chose the
21
0.5-mile distance because it would have had to speculate about the locations of wells.7 In
addition, this same 0.5-mile assumption was used by BLM in the 2007 Elk Report. AR 004652
(“Habitat effectiveness is that total area greater than 0.5 miles from roads, or less than 0.5 miles
from a road but not visible from a road.”).
5. BLM’s decision not to predict elk population impacts was reasonable and BLM’s
finding of no significant impact on the elk herd was not contrary to the 2007 Elk
Report.
The Plaintiffs make two arguments that rely on the 2007 Elk Report, the environmental
report issued by BLM that examined CBNG development impacts on the Fortification Creek
herd. See AR 004626. First, they argue that BLM failed to take a hard look at the impacts to elk
because BLM did not make any predictions as to the impact of the Proposed Action on the herd’s
population size. Pls.’ Reply at 19. They claim that doing so was not only possible, because the
2007 Elk Report did so, but also necessary, because one of the performance standards is
maintenance of 80% of the population objective. AR 019270. Second, they argue that the 2007
Elk Report’s prediction that the elk herd population would decrease to 46 to 64 elk due to CBNG
development demonstrates that BLM’s FONSI with respect to the 2011 RMPA/EA is
contradicted by “BLM science.” Pls.’ Reply at 21-22. Both of these arguments rely on the
Plaintiffs’ assertion that the 2007 Elk Report provides a “reasonable gauge” for analyzing how
CBNG development under the Proposed Action will impact the elk. Id. at 21. In particular, the
7
The RMPA/EA stated:
Rather than calculate the buffering around individual wells, especially because
their exact location is difficult to predict, it was assumed that by calculating the
loss of effective habitat around roads that access the wells, the loss of effective
habitat around wells was accommodated because elk are avoiding human activity
more than the physical roads or wells, and more surface area and activity occurs
on the roads than at the wells.
AR 018649.
22
Plaintiffs claim that the scenario evaluated in the 2007 Elk Report “doesn’t deviate” that much
from the Proposed Action. Id. Therefore, the Plaintiffs allege that because the 2007 Elk Report
evaluated a scenario that was similar to the Proposed Action, and because the 2007 Elk Report
found that CBNG development could significantly impact the size of the elk herd, BLM should
have found that the Proposed Action will also have a significant impacts on the population of the
elk herd.
However, contrary to the Plaintiffs’ argument, the development scenario in the 2007 Elk
Report is not similar to the Proposed Action (also called Alternative III in the RMPA/EA). Both
scenarios use an “80 acre well spacing scenario,” AR 04629, 018602, but the Proposed Action
imposes the requirement that a minimum of “80 percent of elk security habitat as measured from
roads within all seasonal ranges and within each geographic phase” be retained, see AR 019229,
whereas in the development scenario in the 2007 Elk Report, the security habitat throughout the
range would be reduced by 80% and there would be no security habitat outside of the WSA. AR
004653. In addition, in the 2007 Elk Report, CBNG development would be authorized in the
entire FCPA (except for the WSA), AR 004629, but under the Proposed Action, development
will take place in “geographic phases.” AR 019206.
With this in mind, the Court now turns to the first of the Plaintiffs’ arguments, BLM
presented a reasonable explanation for its decision to evaluate impacts based on loss of habitat
rather than population numbers. BLM explained:
Loss of habitat is measurable. However, it is not possible to translate this
information directly to changes in elk population estimates. It is difficult to
predict exactly what the elk herd will do in response to the various development
scenarios (O’Brien 2008). With that in mind, the analysis of available habitat is
the best measure that can be applied to estimate impacts to the elk herd.
23
AR 018650. BLM is entitled to deference for its determination as to the appropriate
methodology to use to predict impacts. See Alaska Airlines, Inc., 588 F.3d at 1120.
As to the Plaintiffs’ second argument, one of the more significant distinctions between
the Proposed Action and the scenario in the 2007 Elk Report is that the Proposed Action would
maintain 80% of the security habitat whereas the 2007 Elk Report scenario would limit security
habitat to the WSA. AR 004629; AR004654. Therefore, the fact that the 2007 Elk Report
determined that the WSA can only maintain 46 to 64 elk with the proposed level of development
does not show that the Proposed Action would also have significant impacts on the elk herd
population. AR 004646.
6. BLM’s Proposed Action does not create significant uncertainty and controversy
regarding the elk herd’s viability.
The Plaintiffs argue that the Proposed Action’s performance-based management
approach and the agency’s underlying analysis of that approach create significant uncertainty and
controversy regarding the elk herd’s viability, and thus BLM is required to prepare an EIS. See
40 C.F.R. § 1508.27(b)(4), (5). The CEQ regulations provide that to assess whether the
Proposed Action will have significant effects, the agency must consider the context and intensity
of the Proposed Action. 40 C.F.R. § 1508.27. Context “means that the significance of an action
must be analyzed in several contexts such as society as a whole (human, national), the affected
region, the affected interests, and the locality.” 40 C.F.R. § 1508.27(a). Intensity “refers to the
severity of impact” and the regulation provides ten factors for evaluating intensity. Id.
§ 1508.27(b). Two of the factors are the degree to which the impacts are likely to be highly
controversial and the degree to which the impacts are highly uncertain or involve unique or
unknown risks. 40 C.F.R. § 1508.27(b)(4), (5).
24
The Plaintiffs argue that the Federal Defendants have failed to identify any science to
justify the “dramatic shift” from the prescriptive approach that the agency selected in the 2008
draft RMPA/EA to the performance-based approach adopted in the Proposed Action. Pls.’ Reply
at 15. But this is really just an argument by the Plaintiffs that BLM should have selected
Alternative II (the prescriptive approach) rather than Alternative III (the performance-based
approach) as the Proposed Action. Such an argument “misconceives the nature of NEPA's
mandate, which prescribes a process, not an outcome.” Hammond v. Norton, 370 F. Supp. 2d
226, 242 (D.D.C. 2005). NEPA “does not mandate particular results, but simply prescribes the
necessary process.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S. Ct.
1835, 1846, 104 L. Ed. 2d 351 (1989). In other words, “NEPA merely prohibits uninformed—
rather than unwise—agency action.” Robertson, 490 U.S. at 351, 109 S. Ct. at 1846.
Moreover, the Plaintiffs’ allegation that “BLM ignored the earlier science on the
Fortification Creek elk” is also without merit. Pls.’ Reply at 15. The Plaintiffs do not pinpoint
any science in the 2007 Elk Report or the 2008 Elk Monitoring Plan that is inconsistent with the
science in the RMPA/EA.
The Plaintiffs argue that the RMPA/EA fails to discuss the specific mitigation measures
and the agency responses that will be triggered when one of the performance-based thresholds is
exceeded. Pls.’ Mtn. at 29. They contend that this creates significant controversy and
uncertainty necessitating preparation of an EIS. See 40 C.F.R. §§ 1508.27(b)(4), (5); Pls.’ Mtn.
at 28-29. “[O]ne important ingredient of an EIS is the discussion of steps that can be taken to
mitigate adverse environmental consequences.” Robertson, 490 U.S. at 351, 109 S. Ct. at 1846.
However, the D.C. Circuit has explained that “[t]he procedural requirements of NEPA do not
force agencies to make detailed, unchangeable mitigation plans for long-term development
25
projects.” Theodore Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497, 517 (D.C. Cir.
2010). Rather, the discussion of possible mitigation measures simply must provide “sufficient
detail to ensure that environmental consequences have been fairly evaluated.” Nat’l Parks
Conservation Ass’n v. Jewell, --- F. Supp. 2d ---, 2013 WL 4616972, at *3 (D.D.C. Aug. 30,
2013) (quoting Theodore Roosevelt Conservation P’ship, 616 F.3d at 503).
The D.C. Circuit has specifically found that the use of an adaptive management plan that
sets forth “fixed mitigation measures” meets NEPA’s “hard look” requirement. Theodore
Roosevelt Conservation P’ship, 616 F.3d at 517. In particular, in Theodore Roosevelt
Conservation Partnership v. Salazar, the court found that an adaptive management plan that
outlined performance goals for the project, established a monitoring team to develop
“quantifiable criteria to evaluate the project’s adherence with the adaptive management
performance goals,” and set forth “relatively detailed mitigation measures” did not violate
NEPA. Theodore Roosevelt Conservation P’ship, 616 F.3d at 516-17. The adaptive
management plan “endeavor[ed] to monitor the development’s effects on the environment and
mitigate those effects as necessary” and pursuant to the plan, “the exact application of mitigation
measures [would] be determined on a site-specific basis.” Id. at 516. The court concluded that
the adaptive management plan did not violate NEPA’s requirement to take a hard look at
environmental impacts before actions are taken, explaining:
Through the adaptive management plan, the Bureau plans to monitor the real
effects of the development it authorizes, and adapt its mitigation measures to
specific drilling proposals in response to trends observed. Allowing adaptable
mitigation measures is a responsible decision in light of the inherent uncertainty
of environmental impacts, not a violation of NEPA. It is certainly not arbitrary or
capricious.
Id. at 517.
26
The adaptive management approach adopted in the Proposed Action in this case is very
similar to the one upheld in Theodore Roosevelt Conservation Partnership, and for the same
reasons, it does not violate NEPA’s hard look requirement. In particular, as part of BLM’s
“adaptive management approach,” AR 018463, the RMPA/EA sets forth a performance-based
plan for CBNG development. AR 018476. BLM outlines seven measurable performance
standards in Appendix B to the RMPA/EA. AR 019270. These criteria relate to the elk herd
population size, the number of calves born, calf survival rates, the amount of security habitat,
and the level of habitat effectiveness. 8 AR 019270. In addition, the RMPA/EA sets forth a
monitoring program under which employees of BLM and the State of Wyoming will track
compliance with the performance standards in order to monitor the welfare of the Fortification
Creek herd. AR 019270; AR 018665-66. The RMPA/EA also states that the monitoring team
will meet a minimum of once per year “to assess trends and determine if any thresholds have
been crossed.” AR 019270. If a threshold is crossed and the monitoring team determines that a
management change is warranted, the team will rely on a list of six recommended mitigation
measures outlined in the RMPA/EA.9 AR 019271; 019325. These mitigation measures are for
oil and gas operators to consolidate and minimize infrastructure, namely, to locate ancillary
facilities (such as water management, compressors, and metering stations) outside of crucial
8
The performance criteria are: (1) an elk population of 120 or greater; (2) calf production is
maintained at least 80% of current cow:calf ratio; (3) winter calf survival is at least 80% of
current cow:calf ratio; (4) next-summer calf survival is at least 80% of current cow:yearling
ratio; (5) fidelity to the seasonal ranges remains greater than 80% of current levels; (6) security
habitat is maintained at 80% or greater than baseline levels within the crucial ranges and
yearlong range for each geographic phase; (7) habitat effectiveness is maintained at 80% or
greater of current levels within the crucial ranges and the yearlong range. AR 019270.
9
The performance standards and the mitigation measures are two distinct aspects of the
Proposed Action. The performance standards set quantifiable levels of impact that are not to be
exceeded. They set requirements for the site-specific project proposals. AR 019322. The
mitigation measures are recommended steps for reducing impacts. See AR 019270-71.
27
ranges, reduce metering and other production related visitation, close and reclaim redundant and
otherwise unnecessary roads, limit operations within crucial seasonal ranges, limit security
habitat loss, and work with BLM and the WGFD to incorporate forage and habitat enhancements
into plans of development. AR 019271. The RMPA/EA also discussed studies indicating that
elk avoid infrastructure such as natural gas wells and roads, AR 018563, and the importance of
security habitat to elk viability, AR 018668, thereby supporting the mitigation measures
proposed by BLM.
Moreover, because this is a programmatic RMPA/EA, the specifics of how each proposed
development intends to meet the performance standards will be evaluated at the site-specific
level. AR 019322-23. For each project proposal, “operators must develop plans to demonstrate
how performance standards will be met.” AR 019323. In adopting this approach, BLM heeded
the WGFD’s advice to establish a team “to review the monitoring data, determine trends and
verify thresholds, and utilize the available data and their expertise to determine case-specific
mitigation responses,” AR 009215, as well as its advice to incorporate “measurable threshold or
trigger points.” AR 010605.
Contrary to the Plaintiffs’ argument, the RMPA/EA provides sufficient certainty
regarding BLM’s response if a performance standard threshold is crossed. Specifically, BLM
provided in its Decision Record that “[a]ll development is dependent upon meeting the
performance standards.” AR 019206; see also AR 019078 (BLM responding to an industry
comment by explaining that “[i]f a performance standard is not met and BLM determines it is
necessary, then additional permitting will be stopped until the standard has been achieved to the
BLM's satisfaction.”). As the RMPA/EA states, “BLM may authorize additional drilling if BLM
determines that the security habitat and other performance standards have been met.” AR
28
018476.10 Consistent with an “adaptive” management approach, BLM explains that the
thresholds “are not hard thresholds” in that “[i]f a threshold is crossed it will not be automatic
that management actions will change.” AR 019270-71. Instead,
[t]he monitoring team will review all the data, and determine whether a
management change is warranted. For example if the winter calf survival ratio
falls below the threshold and the monitoring team after reviewing the data
believes the decreased calf survival is related to winter weather and not CBNG
development then a management change would likely not be proposed.
AR 019271. It is reasonable for BLM to adapt its response based on its review of the impacts to
the elk herd and the reasons for that impact. See Theodore Roosevelt Conservation P’ship, 616
F.3d at 517 (“Allowing adaptable mitigation measures is a responsible decision in light of the
inherent uncertainty of environmental impacts.”); see also W. Watersheds Project v. Bureau of
Land Mgmt., 3:11-cv-00053, 2011 WL 1630789, at *3 (D. Nev. Apr. 28, 2011) (“NEPA
specifically allows agencies to utilize adaptive management plans that, like the [Avian and Bat
Protection Plan] in this case, monitor the real environmental effects of a project and allow the
BLM to adapt its mitigation measures in response to the trends observed.”).
In addition, BLM’s handling of the mitigation measures satisfies the hard look
requirement, particularly in light of the fact that BLM is utilizing an adaptive management
approach under which it will determine the appropriate mitigation measures to pursue based on
evaluating the measurable performance standards. See Robertson, 490 U.S. at 353, 109 S. Ct. at
1847-48 (NEPA does not demand “a detailed explanation of specific measures which will be
employed to mitigate the adverse impacts of a proposed action.”); see also Defenders of Wildlife
v. Salazar, 698 F. Supp. 2d 141, 149 (D.D.C. 2010), aff’d, 651 F.3d 112 (D.C. Cir. 2011) (“Even
though the agencies have yet to fill in every detail (which is to be expected of an adaptive
10
The BLM Director also clarified in the Director’s Protest Resolution Report to the RMPA
that “[i]f the performance standards are not met to BLM’s satisfaction, the [applications for
permits to drill] will not be authorized.” AR 019319.
29
management plan), the Bison and Elk Management Plan and EIS incorporate enough mitigation
measures to provide a reasonably complete discussion of mitigation.”). The point of such an
adaptive approach is that BLM can address impacts at the time specific projects are proposed and
choose the best mitigation measures to use based on the feedback from the monitoring team.
Because BLM’s adaptive management plan sets forth “quantifiable criteria” that the monitoring
team will track to ensure that a “viable elk herd utilizing their seasonal ranges during the
appropriate seasons is maintained across the FCPA” and includes possible mitigation measures
to meet those performance goals, the Court concludes that BLM has taken a sufficiently hard
look at the environmental consequences of the Proposed Action. See AR 019270-71.
7. BLM reasonably evaluated the Proposed Action’s impacts within the local context.
NEPA requires BLM to evaluate impacts in “context.” 40 C.F.R. § 1508.27(a).
Moreover, “uncertainty as to the impact of a proposed action on a local population of a species,
even where all parties acknowledge that the action will have little or no effect on broader
populations, is ‘a basis for a finding that there will be a significant impact.’” Fund for Animals
v. Norton, 281 F. Supp. 2d 209, 234 (D.D.C. 2003) (quoting Anderson v. Evans, 314 F.3d 1006,
1019 (9th Cir. 2002), opinion amended on denial of reh’g, 350 F.3d 815 (9th Cir. 2003), opinion
amended and superseded on other grounds on denial of reh’g, 371 F.3d 475 (9th Cir. 2004)).
The Plaintiffs argue that BLM improperly circumvents these requirements by stating in
the FONSI that “[t]he viability of a small Wyoming elk herd is insignificant within the national
and regional contexts.” AR 018462; Pls.’ Mtn. at 30-33. The Plaintiffs assert that BLM’s legal
determination of insignificance is based on the existence of elk “throughout mountainous regions
of western North America,” not on the viability of the Fortification Creek elk herd. Pls.’ Mtn. at
30
33. However, the Plaintiffs take this statement from the FONSI out of context. The FONSI
states:
Elk are a common species ranging throughout mountainous regions of western
North-America. Many eastern states have reintroduced populations. The viability
of a small Wyoming elk herd is insignificant within the national and regional
contexts.
AR 018462. But in the next paragraph, BLM explains why the Fortification Creek elk are of
“local interest and importance”:
The Fortification Creek elk are a small isolated herd living in a prairie
environment. Such prairie herds were common prior to European expansion on
the western plains. Today, elk herds occupying prairie habitats are unusual
though not unique and are therefore of local interest and importance. The public,
conservation groups, and the State of Wyoming have all expressed their interest in
maintaining a viable elk herd within the Fortification Creek Planning Area
(FCPA). The proposed RMPA includes elements such as phasing development
and performance standards to maintain the elk herd at or above the Wyoming
Game and Fish Department (WGFD) population objective.
AR018462. As a result, the Plaintiffs’ contention that BLM failed to analyze the significance of
impacts on the elk herd within the local context is not supported by the record.
C. BLM’s analysis of the Queen B POD was sufficient.
The Plaintiffs argue that “BLM’s approval of the Queen B POD implements and is
therefore derivative of the agency’s RMPA-level performance-based management approach and
NEPA review, suffering from the same flaws.” Pls.’ Mtn. at 33. In particular, the Plaintiffs
focus on the Queen B EA’s recognition that “[h]abitat effectiveness and habitat use will likely be
affected and possibly the population itself,” arguing that this shows that an EIS must be
prepared. AR 020854.
This Court finds that the Queen B EA adequately discusses the impacts of the project on
the elk herd and its habitat. All of the 1,509 acres that make up the Queen B POD are within the
Fortification Creek herd’s yearlong range. AR 020846. The Queen B EA acknowledges that
31
during development of the Queen B POD, the elk population is “expected to be stressed and
impacted almost continuously.” AR 020845. Nevertheless, BLM anticipated no loss of security
habitat from the Queen B project. AR 020846; see also AR 020763 (FONSI, noting that “[t]he
impacts described by the EA comply with the performance standards as there is no loss of elk
security habitat anticipated from this project.”). As previously discussed, the amount of affected
security habitat is one of the metrics BLM chose for identifying the significance of a project. AR
018672; AR 019206. Looking at cumulative impacts, the Queen B EA found that non-federal
and federal development in the vicinity of the Queen B project would result in a loss of 12.7% of
the elk security habitat in the southeastern portion of the FCPA. AR 020849. But, as indicated
above, the Queen B project itself is not projected to cause any loss of elk security habitat. AR
020849.
While the Queen B project will result in less than 0.1 acre of directly destroyed habitat, it
will result in an additional 290 acres of habitat that would be compromised so as to be unusable
by the elk. AR 020844; 020846. However, BLM found that none of the elk with GPS collars
used the Queen B project area consistently. AR 020764. In addition, the Queen B project also
includes mitigation measures to help ensure that the range fidelity performance standards are
met. AR 020846.
The Queen B EA acknowledges that the project will affect the elk population and its
habitat, but it reasonably finds that the effects will not be significant because the project’s
predicted impacts are below the thresholds established by the performance standards in the
RMPA/EA and therefore, an EIS is not required. AR 020854 (“[M]onitoring in accordance with
the RMPA shall maintain compliance with the performance standards thereby avoiding any
significant impacts.”); see also Sierra Club v. Peterson, 717 F.2d at 1415 (explaining that an EIS
32
must be prepared when any significant environmental impacts might result from the proposed
action).
The Plaintiffs argue that the projected density of wells in the Queen B POD indicates that
the environmental effects of the project are significant. Pls.’ Mtn. at 34. BLM estimated that
foreseeable development within the Queen B POD will yield a well density of 12 wells per
square mile. AR 020849. As the Plaintiffs point out, the WGFD has concluded that “a well
density of 4 wells or more per section within elk crucial winter and/or parturition ranges creates
an extreme level of impact for big game.” AR 020849. However, the Queen B project itself
does not involve a well density of that level in the elk crucial winter or parturition ranges. The
map of the Queen B project shows that the Queen B project area is almost entirely outside of the
elk parturition range. AR 020804, 020846. Moreover, the Queen B project area overlaps with
just a small segment (861 acres) of the elk’s total crucial winter habitat range.11 AR 020846.
Accordingly, the Plaintiffs have not shown that the Queen B FONSI was arbitrary, capricious, or
otherwise unlawful. See Theodore Roosevelt Conservation P’ship v. Salazar, 605 F. Supp. 2d
263, 271 (D.D.C. 2009), aff’d, 616 F.3d 497 (D.C. Cir. 2010) (“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.”).
D. BLM’s analysis of the impacts on water resources was adequate.
1. BLM took a “hard look” at the impacts on water resources.
The Plaintiffs argue that BLM failed to take a hard look at water resource impacts in the
RMPA/EA and the Queen B project EA and that it should have prepared an EIS for both,
particularly because the EA acknowledges that the Proposed Action would have a “major
11
By way of comparison, the elk’s crucial winter and parturition ranges comprise a total of
71,755 acres. AR 004634.
33
impact” on stream channels and aquifers. AR 018633-34. The Plaintiffs argue that the FONSI
does not specifically address impacts to water resources and that although the FONSI relies on
mitigation to avoid a finding of significance, the RMPA’s underlying EA contains no discussion
of how impacts to water resources will be mitigated.12 Pls.’ Mtn. at 35.
The Plaintiffs’ arguments fail because BLM has already prepared a programmatic EIS
(the “PRB EIS”) analyzing the impacts to water resources from CBNG development in the
Powder River Basin, which includes the FCPA, and, as the Federal Defendants maintain, both
the RMPA/EA and the Queen B POD EA incorporate by reference this PRB EIS (in other words,
they are “tiered” to the PRB EIS). AR 0018636 (“Cumulative impacts to water resources were
evaluated for the entire PRB, including the FCPA in the PRB [ ] FEIS.”); AR 020763 (Queen B
project FONSI explaining that the Queen B POD “will not have significant environmental
impacts beyond those already addressed in the Powder River Basin (PRB) Final Environmental
Impact Statement [ ], to which the EA is tiered.”). The PRB EIS was prepared by BLM in 2003
to evaluate proposals for significant CBNG development in the Powder River Basin. AR
026866. As part of the PRB FEIS, BLM prepared technical reports analyzing both groundwater
and surface water quality and the potential impacts on those water resources from CBNG
development. AR 028619-844 (surface water); AR 028845-029132 (groundwater). The PRB
FEIS discussed potential impacts on groundwater from CBNG development, including
projections with respect to CBNG produced water, drawdown, recovery and recharge of
groundwater; impacts on water wells; and methane emissions into groundwater. AR 028952-55;
028955-029022; 027371-90. With respect to surface water, the FEIS discussed the potential
12
The FONSI states: “Most leases were purchased with a stipulation that impacts to steep
slopes, fragile watersheds and crucial elk habitat would be mitigated through a plan
acceptable to the authorizing officer designed to avoid significant impacts.” AR 018462.
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effects of (1) changes in surface water quality and suitability to meet designated uses; (2)
changes in the quantity and distribution of surface flows; (3) erosion and degradation of the
drainage network; and (4) increased sedimentation. AR 027390-94; 027438-43.
The D.C. Circuit has found that an agency may “tier” its analyses. “Tiering” has been
described by this Circuit as follows:
In general, an agency preparing an environmental assessment for a drilling permit
is not required to reevaluate the analyses included in the relevant project's EIS.
Instead, NEPA regulations allow “tiering,[”] which permits site-specific
environmental analyses to incorporate by reference the general discussions of
prior, broader environmental impact statements. 40 C.F.R. § 1508.28. The
regulations expressly provide that “[t]iering is appropriate when the sequence of
statements or analyses is ... [f]rom a program, plan, or policy environmental
impact statement to a program, plan, or policy statement or analysis of lesser
scope or to a site-specific statement or analysis.” § 1508.28(a) (emphasis added).
Theodore Roosevelt Conservation P’ship, 616 F.3d at 511-12; see also Nevada v. Dep’t of
Energy, 457 F.3d at 91 (explaining that when a narrower analysis is “tiered” to a broad EIS,
“[t]he subsequent analysis need only summarize, and incorporate by reference, the
environmental issues discussed in the programmatic EIS.”). As a result of tiering, BLM has
already prepared an EIS evaluating the impacts on water resources in the FCPA from CBNG
development.
Moreover, turning to the discussion of impacts on water resources in the RMPA/EA and
the Queen B EA, the Plaintiffs do not identify a single potential impact on water resources that
either of these EAs neglected to evaluate. A review of both the RMPA/EA and the Queen B EA
show that they adequately describe the potential impacts of development on water resources
within the FCPA. AR 018541-50; AR 018623-34; AR 020863-64.
The Plaintiffs next argue that neither the RMPA/EA nor the PRB FEIS adequately
explain the mitigation measures that BLM relies on for reaching its FONSI for the RMPA. The
35
Plaintiffs argue that BLM was required to describe how “mitigation measures will render water
resource impacts so minor as to not warrant an EIS,” citing to National Parks & Conservation
Association v. Babbitt, 241 F.3d 722, 731 (9th Cir. 2001), abrogated on other grounds by
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 130 S. Ct. 2743, 2757 (2010). Pls.’ Mtn.
at 23. However, National Parks is not on point, because in that case, an EIS had not been
prepared. See Nat’l Parks & Conservation Ass’n, 241 F.3d at 725. Here, the PRB FEIS was
prepared, and as the Plaintiffs concede, the RMPA/EA and Queen B EA were tiered to the PRB
FEIS. See Pls.’ Reply at 22. Because an EIS evaluating impacts to water resources had already
been prepared, the agency did not need to show that the mitigation measures would ensure no
significant impacts. See Robertson, 490 U.S. at 353, 109 S. Ct. at 1847 (“[I]t 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.”); see also Citizens Against Burlington, Inc. v.
Busey, 938 F.2d 190, 206 (D.C. Cir. 1991) (“NEPA not only does not require agencies to discuss
any particular mitigation plans that they might put in place, it does not require agencies—or third
parties—to effect any.”).13
13
The Plaintiffs also point to a comment submitted by the U.S. Environmental Protection
Agency (“EPA”) on the 2008 draft RMPA/EA stating that it was “concerned about the impacts
of the proposed CBNG development on the Powder River,” which is listed as impaired under the
Clean Water Act due to concentrations of selenium and chloride. AR 014420. The EPA stated
that it recommended that a water monitoring program be developed with a focus on selenium and
concluded that “[w]ithout effective and demonstrable mitigation measures to prevent
unacceptable impacts to water chemistry and water resources, a [FONSI] may be difficult to
support.” AR 014420. However, the RMPA/EA addressed these concerns. First, the RMPA/EA
and the PRB FEIS both discussed the impacts of CBNG development on the concentrations of
selenium in water resources. See AR 027064, 027066, 027439, 027441, 027546-47, 027555,
027561-62, 027568 (PRB FEIS); see also AR 018550, 018555 (RMPA/EA). Furthermore, the
RMPA/EA explained that a Wyoming Pollutant Discharge Elimination System (WYPDES)
permit issued by the Wyoming Department of Environmental Quality (WDEQ) will be necessary
for all water discharge. AR 018623, 018644. It also explained that WYPDES permits specify
36
Furthermore, the RMPA/EA is a programmatic document that does not authorize project-
level development. Instead, both the PRB FEIS and the RMPA/EA note the importance of site-
specific mitigation analysis for water resource impacts. AR 018547; AR 029028. At the project-
level, such as for applications for permits to drill (APDs) and PODs, a Water Management Plan
is required. AR 018547. The Water Management Plan must address the handling of produced
water during the testing and production of CBNG wells and it also must provide adequate
information for BLM to complete site-specific NEPA analyses and ensure compliance with all
State and Federal requirements prior to approval. Id. The RMPA/EA outlines a number of
management actions required at the project level that “will ensure that current Wyoming
Department of Environmental Quality (WDEQ) water discharge standards are maintained within
the eight subwatershed areas of the FCPA.” AR 018623-24; see also AR 018505-06 (identifying
management actions for water resources common to all alternatives). This site-specific analysis
and mitigation process was applied to the Queen B POD approval process. The Queen B EA
incorporates a Water Management Plan. AR 020863; 020773. Accordingly, BLM took a hard
look at the impacts to water resources in the RMPA/EA and the Queen B EA.
2. BLM was not required to supplement its EA.
The Plaintiffs argue that BLM violated CEQ regulations by not supplementing its EA to
consider potentially significant new information contained in a report by the U.S. Geological
Survey (“USGS Report”) regarding impacts on water resources in the FCPA. Pls.’ Mtn. at 42;
AR 020614-57. The CEQ regulations require agencies to “prepare supplements to either draft or
final environmental impact statements if . . . [t]here are significant new circumstances or
effluent limits, so the quality of water in the Powder River “should not be degraded to levels
below aquatic life standards in tributaries and mainstreams.” AR 018555. See also AR 015934-
35 (BLM’s response to EPA’s comments, explaining that water discharge is regulated by the
WDEQ and that BLM’s authority over water management is limited, especially when a
WYPDES permit has been granted).
37
information relevant to environmental concerns and bearing on the proposed action or its
impacts.” 40 C.F.R. § 1502.9(c)(1)(ii). However, supplementation “is only required where new
information ‘provides a seriously different picture of the environmental landscape.’” City of
Olmsted Falls v. FAA, 292 F.3d 261, 274 (D.C. Cir. 2002) (citing Wisconsin v. Weinberger, 745
F.2d 412, 418 (7th Cir. 1984)). As evidence of new information, the Plaintiffs identify the
USGS Report’s finding that the “[c]umulative inputs from smaller tributaries such as
Fortification and Wild Horse Creeks may contribute to the biological-condition declines” within
segments of the Powder River. AR 020639 (USGS Report); Pls.’ Mtn. at 42. The USGS Report
also found that “[m]acroinvertebrate community metrics indicated potential decline in biological
condition in the middle reaches of the Powder River.” AR 020650.
However, these findings do not present a seriously different picture than that which the
RMPA/EA analyzed. The RMPA/EA acknowledged that CBNG discharge water in streams
“could result in changes to stream morphology and fish and vegetation habitats.” AR 018546.
As a consequence, the information in the USGS Report was not new information that presented a
different picture of the impacts on water resources. As the RMPA/EA admitted, the potential
impacts of the discharge water include “alteration of terrestrial and aquatic wildlife ecosystems
including macroinvertebrates.” AR 018546; see also AR 018555 (“Stream flows are currently
being enhanced in the FCPA by CBNG discharged water and variably increased flows.
Tributaries may collectively increase flow to the Powder River such that fish and aquatic species
could be affected.”). The PRB FEIS also noted possible negative effects on a variety of aquatic
species and macroinvertebrates from long-term effects to water quality, including increased
concentrations of selenium, bicarbonate, other salts, and sediment load. AR 027568-69.
Accordingly, the RMPA/EA and the PRB FEIS both considered the types of water quality issues
38
addressed in the USGS Report and therefore, the USGS Report does not raise unaddressed issues
which BLM was required to consider in a supplemental EA.
E. BLM took a hard look at the impacts to soil, slopes, and reclamation.
The Plaintiffs argue that BLM failed to take a hard look at soils, steep slopes, and
reclamation, and thus failed to justify its decision to forgo an EIS for the RMPA. Pls.’ Mtn. at
40. However, the Plaintiffs fail to identify any impact to soil resources that BLM did not
adequately analyze and the record shows that BLM’s analysis of potential impacts to soil
resources in the RMPA/EA was sufficient. AR 018614-15; AR 018535-41; AR 018620-22. In
addition, the Plaintiffs complain that BLM only found that there would be no significant impacts
with respect to soil, slopes, and reclamation by relying on unspecified mitigation measures. Pls.’
Mtn. at 40. The Plaintiffs assert that BLM’s failure “to provide detailed information regarding
site-specific mitigation creates uncertainty and controversy, requiring an EIS.” Pls.’ Reply at 24.
Contrary to the Plaintiffs’ assertion, the RMPA/EA does not rely on site-specific mitigation for
its finding of no significant impact to soil resources. Instead, BLM found that the Proposed
Action would have no significant impacts on soil resources by making projections as to how
many acres of soil resources would be impacted by the Proposed Action. AR 018621-22. BLM
used these projections, the accuracy of which the Plaintiffs do not challenge, to determine that
the impacts to soil resources would be minor. AR 018622.
F. BLM analyzed a reasonable “no action” alternative.
The Plaintiffs argue that the “no action” alternative in the RMPA/EA was not an accurate
depiction of how development would proceed under the status quo, because it failed to take into
account some of the existing lease stipulations that are protective of resources. Pls.’ Mtn. at 43.
Some of the existing leases in the FCPA contain stipulations such as No Surface Occupancy
39
(“NSO”) stipulations (which prohibit surface disturbance without additional BLM approval);
Controlled Surface Use (“CSU”) stipulations (which require BLM and the operator to arrive at
an acceptable mitigation plan) and Timing Limitations (“TLs”) (which prevent activity during
certain seasons). AR 019328. Fed. Defs.’ Mtn. at 43. In assessing the “no action” alternative,
BLM admits that it did not fully consider the impacts of stipulations. AR 019328 (Director’s
Protest Resolution Report stating “BLM did not fully consider the impacts of stipulations in its
analysis.”). The Plaintiffs argue that the result is a “false comparative basis for analyzing”
Alternative III, because the “no action” alternative overstates the impacts that would result from
the status quo land management. Pls.’ Mtn. at 45.
As part of its NEPA analysis, BLM was required to evaluate “all reasonable alternatives,”
including “the alternative of no action.” 40 C.F.R. § 1502.14(a), (d). CEQ has explained that for
“an action such as updating a land management plan where ongoing programs initiated under
existing legislation and regulations will continue,” the “‘no action’ is ‘no change’ from current
management direction or level of management intensity.” Forty Most Asked Questions
Concerning CEQ’s National Environmental Policy Act Regulations, 46 Fed. Reg. 18026, 18027
(March 23, 1981). The court reviews whether an alternative is reasonable “with considerable
deference to the agency’s expertise and policy-making role.” City of Alexandria v. Slater, 198
F.3d 862, 867 (D.C. Cir. 1999).
Here, the RMPA/EA adequately disclosed that development under the “no action”
alternative would proceed pursuant to the stipulations. AR 018479, 018495. However, in the
analysis BLM carried out for predicting the impacts of reasonably foreseeable development on
elk habitat under the “no action” alternative, BLM did not take into account the lease
stipulations. The result is that the predictions of impacts under the “no action” alternative are
40
overstated, because presumably in some instances, there would be a NSO stipulation in the lease
prohibiting surface disturbance.
Nevertheless, BLM provided a reasonable justification for not analyzing the lease
stipulations for the “no action” alternative. AR 019328-29 (Director’s Protest Resolution
Report). First, many leases contain no stipulations and among those that do contain stipulations,
there is considerable variation as to the content of those stipulations. AR 019328. Moreover,
most leases do not contain a NSO stipulation, which is the only stipulation that expressly
prevents surface disturbances and thus has the greatest potential to affect the analysis of habitat
impacts. AR 019328-29 (four leases with NSOs out of the 46 leases in the crucial winter range
and 12 NSOs out of 63 leases in the calving range). Accordingly, it would have been very
difficult to take into consideration the effects of each stipulation in each lease. The analysis
would also have been complicated by the fact that BLM can grant a waiver, exception or
modification of these stipulations, meaning that some of the stipulations do not have easily
predicted or consistent impacts. AR 019329; AR 028066-68. Therefore, BLM’s decision not to
take into account the lease stipulations, particularly the NSO stipulations, was reasonable, and
the Plaintiffs have not demonstrated that the absence of the lease stipulations from the “no
action” analysis was significant enough to mislead the public or the decisionmaker about the
41
impacts of the alternatives.14 See Davis Mountains Trans-Pecos Heritage Ass’n v. USAF, 249 F.
Supp. 2d 763, 791 (N.D. Tex. 2003), vacated on other grounds, 116 Fed. App’x 3 (5th Cir. 2004)
(finding that the disparity between the actual numbers and those used for the baseline analysis
“was not of such significance that the numbers misled the decisionmaker and/or the public when
comparing the No Action alternative against the three remaining [ ] alternatives under
consideration.”).
V. Conclusion
For these reasons, the Plaintiffs’ motion for summary judgment is denied and the motions
for summary judgment filed by the Federal Defendants, Wyoming State, and Lance Oil, are
granted.
March 28, 2014
BARBARA J. ROTHSTEIN
UNITED STATES DISTRICT JUDGE
14
Moreover, the D.C. Circuit has instructed courts to take account of the prejudicial error
rule in the NEPA context. Nevada v. Dep't of Energy, 457 F.3d at 90. The failure to take
account of the stipulations here was harmless error, because there is no indication that including
the stipulations in the analysis would have changed the accuracy of the evaluation of the impacts
from the Proposed Action. This is especially true because the manner in which the “no action”
alternative was used in this RMPA/EA did not make the accuracy of the “no action” alternative
critically important for analysis of the alternatives. This is because the amount of predicted
habitat loss under each of the three alternatives was compared to the baseline existing conditions
(the conditions at the time the analysis was conducted in 2010) and not to the “no action”
alternative. AR 018652-53, 018662, 018666. Therefore, the fact that the “no action” alternative
was not perfectly accurate did not affect the accuracy of the analysis of the predicted impacts
from the other alternatives.
42