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Southern Utah Wilderness Alliance v. United States Department of Interior

United States District Court, D. Utah

March 31, 2017

SOUTHERN UTAH WILDERNESS ALLIANCE, NATURAL RESOURCES DEFENSE COUCIL, and THE WILDERNESS SOCIETY, Plaintiffs,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, UNITED STATES BUREAU OF LAND MANAGEMENT, and AHMED MOHSEN, in his official capacity as Price Field Office Manager, Defendants, and XTO ENERGY, INC. Intervenor-Defendant.

          MEMORANDUM DECISION AND ORDER DENYING PLAINTIFFS' MOTION FOR REVIEW OF AGENCY ACTION, AFFIRMING AGENCY ACTION IN PART, AND DISMISSING CERTAIN CLAIMS AS MOOT

          Jitt N. Parrish United States District Court Judge

         Before the court is a Motion for Review of Agency Action (Docket No. 62) filed by Plaintiffs Southern Utah Wilderness Alliance, Natural Resources Defense Council, and The Wilderness Society (collectively “Plaintiffs”). Plaintiffs challenge the United States Bureau of Land Management's (“BLM”) decision to issue four oil and gas lease parcels in the November 2011 Oil and Gas Lease Sale (“2011 Lease Sale”), and its subsequent decision to approve the Horse Bench NE 24 Pad Seven-Well Project (“Seven-Well Project” or the “Project”). Plaintiffs' suit names the United States Department of the Interior, BLM, and the Price Field Office Manager for BLM, Ahmed Mohsen, (collectively “BLM”) as defendants. XTO Energy, Inc. (“XTO Energy”), which purchased the leases and submitted the proposal for the Seven-Wells Project, intervened as a defendant. As explained below, the court affirms the agency's action regarding the 2011 Lease Sale and dismisses Plaintiffs' claims regarding the Seven-Well Project as moot.

         I. STATUTORY FRAMEWORK

         Plaintiffs assert that BLM's actions violated the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4321, et seq., and the Federal Land Policy and Management Act of 1976 (“FLPMA”), 43 U.S.C. § 1701, et seq. Consequently, before addressing the substance of Plaintiffs' claims, the court outlines the statutory framework of NEPA and FLPMA below.

         A. N E PA

         Before an agency may take any “major Federal action[] significantly affecting the quality of the human environment, ” NEPA requires a thorough evaluation of potential environmental impacts. See 42 U.S.C. § 4332(2)(C); Utah Envtl. Congress v. Russell, 518 F.3d 817, 820 (10th Cir. 2008). “NEPA dictates the process by which federal agencies must examine environmental impacts, but does not impose substantive limits on agency conduct.” Russell, 518 F.3d at 821 (citing Fuel Safe Wash. v. Fed. Energy Regulatory Comm'n, 389 F.3d 1313, 1323 (10th Cir. 2004)). Thus, NEPA's primary mandates are keyed to the agency decisionmaking process itself, rather than the substantive outcome of that process:

First, NEPA forces government agencies to ‘consider every significant aspect of the environmental impact of a proposed action.' Second, NEPA mandates that government agencies inform the public of the potential environmental impacts of proposed actions and explain how their decisions address those impacts.

         Citizens' Comm. to Save Our Canyons v. U.S. Forest Serv., 297 F.3d 1012, 1021-22 (10th Cir. 2002) (internal citations omitted) (quoting and citing Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, 462 U.S. 87, 97, 103 S.Ct. 2246 (1983)). Thus, NEPA “requires federal agencies to pause before committing resources to a project and consider the likely environmental impacts of the preferred course of action as well as reasonable alternatives.” N.M. ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 703 (10th Cir. 2009) (citing 42 U.S.C. § 4331(b)).

         In this pre-project “pause, ” an agency must first determine whether a proposed project will in fact “significantly affect[] the quality of the human environment” and therefore require further in-depth environmental impact analysis under § 4332(2)(C). Where the extent of environmental impact is initially unclear, an agency must prepare an initial environmental assessment (“EA”). See 40 C.F.R. § 1501.4 (b); Silverton Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 780 (10th Cir. 2006). The EA is “a concise public document that briefly provides sufficient evidence and analysis for determining the appropriate next step.” W. Watersheds Project v. Bureau of Land Mgmt., 721 F.3d 1264, 1269 (10th Cir. 2013) (internal quotations omitted) (quoting Russell, 518 F.3d at 821).

If the agency finds that the action will not significantly affect the human environment (and is thus not a major action), it makes a “Finding of No Significant Impact” (or “FONSI”). If it finds the action will significantly affect the environment, it is then required to prepare a more extensive analysis in the form of an ‘environmental impact statement' (or ‘EIS').

Utah Shared Access All. v. U.S. Forest Serv., 288 F.3d 1205, 1207 (10th Cir. 2002) (citing Airport Neighbors All. v. United States, 90 F.3d 426, 429 (10th Cir. 1996)).

         Relevant here, any EIS or EA must “incorporate a range of reasonable alternatives, but the depth of discussion and analysis required is different depending on whether the document is an EIS or an EA.” W. Watersheds Proj., 721 F.3d at 1274 (emphasis in original). For instance, an EIS must present alternatives to the proposal so as to “provid[e] a clear basis for choice among options by the decisionmaker and the public.” 40 C.F.R § 1502.14. Accordingly, an EIS must “[r]igorously explore and objectively evaluate all reasonable alternatives, ” “briefly” explain any alternatives eliminated from consideration, “[d]evote substantial treatment to each alternative considered in detail[, ]” “include reasonable alternatives not within the jurisdiction of the agency[, ]” address the “alternative of no action[, ]” and, inter alia, discuss “appropriate mitigation measures not already included in the proposed action or alternatives.” § 1502.14(a)- (f). By contrast, an EA is a “concise public document” that must include, inter alia, only “brief discussions . . . of the environmental impacts of the proposed action and alternatives” to the proposal. § 1508.9(a)-(b).

         As NEPA does not provide a private cause of action to redress Plaintiffs' grievances, they challenge BLM's actions under the Administrative Procedure Act (“APA”). See Utah v. Babbitt, 137 F.3d 1193, 1203 (10th Cir. 1998); S. Utah Wilderness All. v. U.S. Dep't of Interior, No. 2:13-cv-01060-EJF, 2016 WL 6909036, at *3 (D. Utah Oct. 3, 2016) (unpublished). Under the APA, a district court may only “hold unlawful and set aside agency action, findings, and conclusions” if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2). In evaluating agency action, “[a] presumption of validity attaches to the . . . action and the burden of proof rests with” the challenging party to rebut that presumption. Morris v. U.S. Nuclear Regulatory Comm'n, 598 F.3d 677, 691 (10th Cir. 2010) (internal quotations omitted). Here, Plaintiffs must demonstrate that the errors they have alleged “compromised the EA so severely as to render the FONSI arbitrary and capricious.” W. Watersheds Project, 721 F.3d at 1275. The FONSI may be considered arbitrary and capricious only if the BLM

(1) [e]ntirely failed to consider an important aspect of the problem, (2) offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise, (3) failed to base its decision on consideration of the relevant factors, or (4) made a clear error of judgment.

N.M. ex rel. Richardson, 565 F.3d at 704 (internal quotations omitted).

         B. FLPMA

         FLPMA “creates a ‘versatile framework' for governing . . . BLM's management of [public] lands.” Utah Shared Access All. v. Carpenter, 463 F.3d 1125, 1128 (10th Cir. 2006) (quoting Rocky Mountain Oil & Gas Ass'n v. Watt, 696 F.2d 734, 737-38 (10th Cir. 1982)). The Act provides for management of public lands “under principles of multiple use and sustained yield.” 43 U.S.C. § 1732(a). As the Supreme Court observed:

“Multiple use management” is a deceptively simple term that describes the enormously complicated task of striking a balance among the many competing uses to which land can be put, “including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and [uses serving] natural scenic, scientific and historical values.”

Norton v. S. Utah Wilderness All., 542 U.S. 55, 58, 124 S.Ct. 2373 (2004) (alterations in original) (quoting § 1702(c)). To balance these competing uses and achieve “sustained yield, ” § 1732(a), “FLPMA contains comprehensive inventorying and land use planning provisions” that ultimately “ensure that the ‘proper multiple use mix of retained public lands' [is] achieved.” Rocky Mountain, 696 F.2d at 739; Norton, 542 U.S. at 58 (explaining that FLPMA mandates “a dual regime of inventory and planning”).

         These provisions specifically require the BLM to “develop, maintain, and, when appropriate, revise land use plans” to guide and control its management of public lands. See 43 U.S.C. § 1712(a). “These land use plans, which the BLM regulations denote ‘resource management plans' (‘RMPs') . . . project both the present and future use of the land.” Utah Shared Access, 463 F.3d at 1129 (internal citations omitted) (citing 43 C.F.R. § 1601.0-5(n) and 43 U.S.C. § 1701(a)(2)). “Generally, a land use plan describes, for a particular area, allowable uses, goals for future condition of the land, and specific next steps.” Norton, 542 U.S. at 59; 43 C.F.R. § 1601.0-5 (listing components of RMPs as “goals; objectives; designations; resource use determinations; monitoring and evaluation standards; and lands identified as available for disposal, including sales”). Importantly, “FLPMA prohibits . . . BLM from taking actions inconsistent with the provisions of RMPs.” Utah Shared Access, 463 F.3d at 1129 (citing Norton, 542 U.S. at 69; 43 U.S.C. § 1732(a); 43 C.F.R. § 1610.5-3). Nevertheless, an RMP may be amended after preparation of an EA or an EIS and submission of the proposed amendment to public notice and comment. Id. (citing 43 C.F.R. §§ 1610.5-5, 1610.2).

         Important to this case, FLPMA governs oil and gas leasing on federally managed lands through a three-step process. First, as explained above, FLPMA directs BLM to “develop maintain, and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands, ” 43 U.S.C. § 1712(a), and may allocate public lands for oil and gas leasing, see 43 C.F.R. § 3120.1-1. Second, in accordance with the approved RMP, BLM nominates specific parcels for leasing under 43 U.S.C. § 1712(e) and the lease is sold at competitive auction. See 43 C.F.R. § 3120.3, 3120.5. Finally, the lessee submits an application for permit to drill (or “APD”) to BLM, and, upon BLM's approval, the lessee may explore and extract on the leased parcel. See § 3162.3-1(c).

         Like NEPA, FLPMA provides no private right of action, and any claims regarding an agency's compliance with the statute must be pursued through the APA. Babbitt, 137 F.3d at 1203; see also 5 U.S.C. § 702. Accordingly, the standard of review described above relating to NEPA is equally applicable to claims alleging violations of FLPMA. See Utah Shared Access, 463 F.3d at 1134 (applying the APA's “arbitrary and capricious” standard to claims alleging violations of FLPMA).

         With this statutory framework in mind, the court now turns to the factual background underpinning Plaintiffs' claims.

         II. FACTUAL BACKGROUND

         Plaintiffs challenge BLM's decisions to lease four parcels of land and eventually approve one of those parcels for natural gas development. The parcels at issue span nearly 3, 983 acres of the West Tavaputs Plateau above the confluence of the Green River and Nine Mile Creek, not far from Utah's eastern border with Colorado. In leasing these parcels, BLM acted under the Price Field Office Resource Management Plan (“PFO ROD/RMP”), approved in 2008.

         The PFO ROD/RMP, along with its underlying Environmental Impact Statement (“EIS”), addressed, inter alia, whether and where to allow oil and gas development within the Price Field Office's management area. (See, e.g., AR006764-AR006768). During the development of the PFO ROD/RMP, BLM prepared a supplemental EIS to evaluate an alternative (“Alternative E”) that would protect non-wilderness (“non-WSA”) lands with wilderness characteristics, including the four parcels at issue in this lawsuit. Finding Alternative E to be overly restrictive of other resource uses, BLM chose instead to manage 97, 100 acres to protect their wilderness characteristics and expressly decided that other designated areas would prioritize oil and gas development over the protection of wilderness characteristics. (AR006676-AR006677).

         In December 2008, shortly after the PFO ROD/RMP was issued, BLM held a competitive oil and gas lease sale and offered 116 parcels for lease. After protest and an agency review process, the Secretary of the Interior suspended seventy-seven of these leases, including leases covering the parcels at issue in this case. At the request of the Secretary, an interdisciplinary team prepared a report on the lands subject to the suspended leases (the “Stiles Report”). That report recommended that certain parcels be deferred from leasing until certain procedural requirements were met, including additional environmental impacts analysis.

         Accordingly, BLM prepared the West Tavaputs Natural Gas Full Field Development Plan EIS (“WTP EIS”). The WTP EIS evaluated the development of 807 natural gas wells from 538 well pads across a geographic area encompassing the four lease parcels at issue in this case. (AR003391, AR003417). In addition to the proposed development, the WTP EIS considered the impact of five development alternatives. One of these alternatives, Alternative D, considered implementing various measures, including no-surface-occupancy (“NSO”) stipulations, [1] to protect non-WSA lands with wilderness characteristics. (AR006086). In July 2010, BLM identified its selected alternative in a Record of Decision. (AR006096). The selected alternative considered impacts to non-WSA lands with wilderness characteristics and required imposition of certain protective lease stipulations on each lease sold in the area analyzed by the WTP EIS, including the leases at issue in this case. (AR006120-AR006121).

         After issuing the WTP EIS Record of Decision, BLM prepared an environmental assessment (“EA”) to analyze the environmental impacts of offering nine oil and gas leases for sale, including the four at issue in this case. The EA analyzed the impacts of oil and gas leasing on numerous resources such as: cultural sites, protected animal and plant species, hydrologic conditions, non-WSA lands with wilderness characteristics, and air quality. (AR000540- AR000568). The EA considered two alternatives: (1) the proposed action, which permitted the leases with certain protective stipulations in accordance with the PFO ROD/RMP and the WTP EIS, and (2) a no-action alternative, which precluded any leasing. (AR000553-AR000568).

         The draft EA was presented for public comment in mid-2011. Plaintiffs responded, objecting in particular to the draft EA's treatment of non-WSA lands with wilderness characteristics. Plaintiffs argued that the draft EA should consider “a leasing alternative that fully protects lands with wilderness characteristics, either through parcel deferrals or NSO stipulations.” (AR000635). BLM responded to Plaintiffs' objections, declining to conduct further analysis of Plaintiffs' proposed alternatives. After the close of the public comment period and some tweaking of the draft EA, BLM issued the final EA in August 2011. BLM subsequently issued a Finding of No Significant Impact (“FONSI”) authorizing the issuance of the leases without ...


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