Citizens for a Healthy Cmty. v. U.S. Bureau of Land Mgmt.

377 F.Supp.3d 1223

CITIZENS FOR A HEALTHY COMMUNITY; High Country Conservation Advocates; Center for Biological Diversity; WildEarth Guardians; and Wilderness Workshop; Plaintiffs,

v. UNITED STATES BUREAU OF LAND MANAGEMENT, an agency of the U. S. Department of Interior; David Bernhardt, in his official capacity as Acting U.S. Secretary of the Interior; Stephanie Connolly, in her official capacity as Southwest District Manager; United States Forest Service, an agency of the U.S. Department of Agriculture; Sonny Perdue, in his official capacity as U.S. Secretary of Agriculture; and Scott G. Armentrout, in his official capacity as Forest Supervisor ; Defendants,andSG Interests I, Ltd. and SG Interests VII, Ltd., Intervenor-Defendants.

Civil Case No. 1:17-cv-02519-LTB-GPG

United States District Court, D. Colorado.

Signed March 27, 2019

Kyle James Tisdel, Western Environmental Law Center-Taos, Taos, NM, Allison N. Melton, Allison N. Melton, Attorney at Law, Crested Butte, CO, Laura Helen King, Western Environmental Law Center, Helena, MT, for Plaintiffs.

Romney Sharpe Philpott, III, U.S. Department of Justice-Denver-ENRS Environment & Natural Resources Section, Denver, CO, Tanya Camille Nesbitt, U.S. Department of Justice-DC-# 7611, Washington, DC, for Intervenor-Defendants.

Memorandum Opinion and Order

Babcock, District Judge

This matter is before me on Plaintiffs' Amended Complaint for Declaratory and Injunctive Relief and Petition for Review of Agency Action. ECF No. 14. Plaintiffs seek judicial review of: (1) Defendant Bureau of Land Management's ("BLM") approval of a master development plan; (2) Defendant United States Forest Service's ("USFS") approval of certain natural gas wells, well pads, and related infrastructure; and (3) both Defendants' approval of related applications for permits to drill. See Addendum to this Opinion for a list of acronyms used. I refer to USFS and BLM collectively as "Defendants."

The public officers named as defendants in this case have been updated pursuant to Fed. R. Civ. P. 25(d). SG Interests I, Ltd. and SG Interests VII, Ltd. ("Intervenor-Defendants") properly intervened. ECF No. 26. The matter is fully briefed and the administrative records ("AR") are lodged with the Court. ECF Nos. 44, 45, 47, 50–52.

After carefully analyzing the briefs and the relevant portions of the record, I DEFER final ruling pending further briefing on remedies in accordance with this Order.

I. LAW

A. The National Environmental Policy Act ("NEPA")

NEPA is the "basic national charter for protection of the environment" and its "procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken." 40 C.F.R. § 1500.1. Congress enacted NEPA to ensure that all federal agencies consider the environmental impacts of their actions to prevent or eliminate damage to the environment. Marsh v. Oregon Natural Resources Council , 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) ; see 42 U.S.C. § 4321. NEPA's requirements are augmented by longstanding regulations issued by the Council on Environmental Quality, to which courts owe substantial deference. New Mexico ex rel. Richardson v. Bureau of Land Mgmt. , 565 F.3d 683, 703 (10th Cir. 2009) ("New Mexico ") (citing Marsh , 490 U.S. at 372, 109 S.Ct. 1851 ).

Under NEPA, federal agencies must "include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on," in relevant part, the environmental impact of the proposed action and alternatives to the proposed action. 42 U.S.C. § 4332(C)(i)–(iii). This report may be an Environmental Assessment ("EA"), where the agency determines whether the action "is likely to significantly affect the quality of the human environment." New Mexico , 565 F.3d at 703 (alterations and quotations omitted). If the agency finds that the action is not likely to significantly affect the quality of the human environment, it may issue a "finding of no significant impact" ("FONSI"). Id. (quoting 40 C.F.R. § 1508.13 ). If so, the agency must prepare a more thorough Environmental Impact Statement ("EIS")—the agency may also skip the EA and directly prepare an EIS. Id. at 703, n.23.

The requirement to complete an EIS aims to ensure "that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts" and guarantees "that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision." Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989).

B. Authority to Lease Oil and Gas on Federal Land

Through the Mineral Leasing Act, 30 U.S.C. §§ 181 – 287, the Federal Land Policy and Management Act, 43 U.S.C. §§ 1701 – 1787, and related regulations, BLM has authority to lease public lands with oil and gas reserves to private industry for development. W. Energy All. v. Zinke , 877 F.3d 1157, 1161 (10th Cir. 2017). Lands contained in national forests have additional oversight from the Secretary of Agriculture. 30 U.S.C. § 226(h).

In enacting the Federal Land Policy and Management Act, Congress aimed to empower the Secretary of the Interior to manage the United States' public lands. 43 U.S.C. § 1701. The Secretary, through BLM, "shall manage the public lands under principles of multiple use and sustained yield." 43 U.S.C. § 1732(a). "Multiple use" means "a combination of balanced and diverse resource uses that takes into account the long-term needs of future generations for renewable and nonrenewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values...." 43 U.S.C. § 1702(c).Congress entrusts BLM with the "orderly and efficient exploration, development and production of oil and gas." 43 C.F.R. § 3160.0-4 ; 43 U.S.C. § 1732(b). This is done by using a "three-phase decision-making process." W. Energy All. v. Zinke , 877 F.3d at 1161 (quoting Pennaco Energy, Inc. v. U.S. Dep't of Interior , 377 F.3d 1147, 1151 (10th Cir. 2004) ).

In the first phase, BLM creates a resource management plan ("RMP"), which is "designed to guide and control future management actions and the development of subsequent, more detailed and limited scope plans for resources and uses." 43 C.F.R. § 1601.0–2 ; id. Part of an RMP indicates the lands open or closed to the development of oil and gas, and subsequent development must abide by the terms of the RMP. W. Energy All. , 877 F.3d at 1161–62. The approval of an RMP "is considered a major Federal action significantly affecting the quality of the human environment" and thus requires an EIS. 43 C.F.R. § 1601.0–6.

In the second phase, through state offices, BLM identifies parcels that it will offer for lease, responds to potential protests of the suggested parcels, and conducts "a competitive lease sale auction." W. Energy All. , 877 F.3d at 1162 (citing 43 C.F.R. Subpart 3120). During the identification of parcels available for leasing, a 2010 Department of Interior policy mandates additional review, including: (1) an interdisciplinary team reviewing the parcels proposed for leasing and conducting site visits; (2) identifying issues BLM must consider; and (3) obliging BLM to consult other stakeholders "such as federal agencies, and State, tribal, and local governments." Id.

In the final phase, after the sale of a lease, BLM "decides whether specific development projects will be permitted on the leased land." Id. ; see 43 C.F.R. § 3162.3-1 ; 30 U.S.C. § 226. BLM must approve applications for permits to drill after parcels of land are leased. 30 U.S.C. § 226(g).

C. The Administrative Procedure Act

NEPA provides no private cause of action and thus Plaintiffs' claims arise under the Administrative Procedure Act. New Mexico , 565 F.3d at 704. Under the Act, a person who is suffering a "legal wrong because of agency action" is entitled to judicial review. 5 U.S.C. § 702. An agency's NEPA compliance is reviewed to see whether it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." New Mexico , 565 F.3d at 704 (quoting 5 U.S.C. § 706(2)(a) ). The agency action is arbitrary and capricious if the agency

(1) entirely 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.

Id. (quoting Utah Envtl. Cong. v. Troyer , 479 F.3d 1269, 1280 (10th Cir. 2007) ) (quotations omitted).

When reviewing factual determinations made by agencies under NEPA, short of a "clear error of judgment," an agency is required to take "hard look" at information relevant to a decision. Id. A court considers only the agency's reasoning at the time it made its decision, "excluding post-hoc rationalization concocted by counsel in briefs or argument." Id. (citing Utahns for Better Transp. v. U.S. Dep't of Transp. , 305 F.3d 1152, 1165 (10th Cir. 2002) ); see 3 Charles H. Koch, Jr. and Richard Murphy, Admin. L. & Prac. § 9:26 (3d ed. 2018) ("Without engaging in review of the actual resolution of factual questions of this variety, courts by using the hard look standard assure that the agency did a careful job at fact gathering and otherwise supporting its position.").

In reviewing an EIS or EA, the role of a federal court under NEPA is to simply "ensure that the agency has adequately considered and disclosed the environmental impact of its actions."...