W. Watersheds Project v. U.S. Bureau of Land Mgmt.

76 F.4th 1286

WESTERN WATERSHEDS PROJECT; Center for Biological Diversity;Upper Green River Alliance, Petitioners - Appellants, v. UNITED STATES BUREAU OF LAND MANAGEMENT; Nada Wolff Culver, in her official capacityas Deputy Director of the U.S. Bureau of Land Management, Respondents - Appellees,andJonah Energy, LLC; State of Wyoming, Intervenors Respondents - Appellees.

No. 22-8022

United States Court of Appeals, Tenth Circuit

FILED August 7, 2023

Appeal from the United States District Court for the District of Wyoming (D.C. No. 2:19-CV-00146-SWS)

Wendy Park, Center for Biological Diversity, Oakland, California (Sarah Stellberg, Advocates for the West, Boise, Idaho, and Edward B. Zukoski, Center for Biological Diversity, Denver, Colorado, with her on the briefs), for Petitioners-Appellants.

Sommer H. Engels, Attorney, Environmental and Natural Resources Division, United States Department of Justice, Washington, D.C. (Todd Kim, Assistant Attorney General, and Thomas W. Ports, Attorney, Environmental and Natural Resources Division, United States Department of Justice, Washington, D.C. and Of Counsel Philip C. Lowe, Office of the Solicitor, United States Department of the Interior, Washington, D.C., with her on the brief), for Federal Respondents-Appellees.

Travis S. Jordan, Senior Assistant Attorneys General (D. David Dewald, Senior Assistant Attorneys General, Wyoming Attorney General's Office, Cheyenne, Wyoming, with him on the brief), for Intervenors Respondents-Appellee State of Wyoming.

Kathleen C. Schroder (Gail L. Wurtzler, Davis Graham & Stubbs LLP, Denver, Colorado, with her on the brief), for Intervenors Respondents-Appellee Jonah Energy, LLC.

Before TYMKOVICH, MORITZ, and ROSSMAN, Circuit Judges.

TYMKOVICH, Circuit Judge.

Three conservation groups challenge the United States Bureau of Land Management's approval of Jonah Energy's development project on state and federal land in southwestern Wyoming. The project is designed to drill exploratory wells on lands for which Jonah possesses development rights.

The conservation groups argue the district court erred in upholding BLM's approval under the National Environmental Protection Act and the Federal Land Policy and Management Act. In particular, they contend BLM inadequately considered the impacts of the project on sage-grouse populations and pronghorn antelope migration and grazing patterns. They also object to BLM's approval of the order of development of the affected lands, arguing that BLM should have required a different sequence of development.

We conclude that BLM adequately collected and considered information on the sage-grouse and pronghorn, and selected a development plan that meets the statutory requirements. We therefore affirm.

I. Background

A. Legal background

Two statutes frame this appeal: the National Environmental Protection Act and the Federal Land Policy and Management Act.

NEPA guides federal agencies as they evaluate the "likely environmental impacts of the preferred course of action as well as reasonable alternatives." New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 703 (10th Cir. 2009). It does so by imposing procedural requirements that promote reasoned decision-making. Id. at 704. One such requirement demands agencies compare a proposed course of action with reasonable alternatives and explain a choice between them in an environmental impact statement. 42 U.S.C. § 4332(c); WildEarth Guardians v. U.S. Bureau of Land Mgmt., 870 F.3d 1222, 1226 (10th Cir. 2017) ("The alternatives analysis 'is the heart of the environmental impact statement.' " (quoting 40 C.F.R. § 1502.14)).

NEPA does not, however, set substantive benchmarks. It does not even require agencies to promulgate environmentally friendly rules. Richardson, 565 F.3d at 703. The statute "merely prohibits uninformed—rather than unwise—agency action." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989).

Because NEPA concerns procedure, we assess agency compliance by asking whether it took a " 'hard look' at the environmental consequences" of the proposal and its alternatives. WildEarth Guardians, 870 F.3d at 1227. We will not disturb agency action just because the plaintiff identified "[d]eficiencies in an EIS that are mere 'flyspecks,' " so long as those flyspecks "do not defeat NEPA's goals of informed decisionmaking and informed public comment." Richardson, 565 F.3d at 704. Our review is further buttressed by "a presumption of validity to the agency action" and a "burden of proof [that] rests with the appellants who challenge such action." Diné Citizens Against Ruining Our Env't v. Haaland, 59 F.4th 1016, 1034 (10th Cir. 2023) (cleaned up). When an agency falls short its decision is arbitrary and capricious under the Administrative Procedure Act. WildEarth Guardians, 870 F.3d at 1227; 5 U.S.C. § 706(2)(A).

While NEPA structures an agency's process, FLPMA sets an action's substance. FLPMA requires the Bureau of Land Management to develop land use plans. 43 U.S.C. § 1701(a)(2). These plans guide development on government-owned land. The Bureau must develop land use plans with an eye towards balancing various factors, including the competing land interests, the resources at stake, and the environmental significance of the area. See 43 U.S.C. § 1712(c). Future agency actions touching the land must adhere to that plan. 43 C.F.R. § 1610.5-3(a). When they do not, we again consider the action arbitrary and capricious under the APA. Utah Shared Access All. v. Carpenter, 463 F.3d 1125, 1134 (10th Cir. 2006); 5 U.S.C. § 706(2)(A).

The Bureau promulgated a land use plan that now governs the proposed development area. The Plan incorporated conservation measures originally established by the State of Wyoming. App-III-777-90; App-II-379-87. These conservation measures include special standards called "required design features," which, in part, put up guardrails for development projects in the proposed development area. App-II-381. The Plan has over 70 design features that cover a variety of issues, from sagebrush protection to refuse disposal, that all aim to protect the wellbeing of the public lands.

The Bureau, however, can waive design feature implementation if at least one of three conditions pertain to the development. First, an action need not comport with a design feature if it "is documented to not be applicable to the site-specific conditions of the project/activity." App-II-381. Second, the Bureau can waive compliance when "[a]n alternative RDF, a state-implemented conservation measure, or plan-level protection is determined to provide equal or better protection for [the sage-grouse] or its habitat." Id. Third, coal-mining actions follow a different playbook. Id. But in all cases the Bureau's NEPA analysis must demonstrate that one of the three conditions has been met. Id.

B. Sage-Grouse and Pronghorn

The challenged development project would further develop the Wyoming Upper Green River Valley. Two species of interest call the Valley home: the greater sage-grouse and the pronghorn.

The sage-grouse inhabits large swaths of the western United States. The bird lives in the Valley year-round. Every winter, the sage-grouse congregates in "winter concentration areas," which feature dense sage brush that it uses for food and shelter. The proposed development area, around 140,000 acres, captures around 48,000 acres of protected sage-grouse habitat and about 28,000 acres of winter concentration areas. The federal government does not consider the sage-grouse endangered, but industrial development threatens its habitat and disrupts mating and migratory patterns.

The sage-grouse lives alongside the pronghorn. The pronghorn is a species of mammal that closely resembles the antelope. The proposed development may impact the Sublette Herd, a group of nearly 30,000 pronghorn that inhabits the Valley and fans outside the region as far north as Grand Teton National Park. A small subgroup of about 300 pronghorns—the Grand Teton Herd—migrates from Grand Teton National Park to the Valley each fall. The Teton Herd travels a 170-mile migratory route called the "Path of the Pronghorn." Its journey lasts about three days. On the way to the Valley, the Teton Herd winds through narrow corridors and routes, cramped by growing development. The Path of the Pronghorn is the Teton Herd's last workable migratory path to the Valley because of other development. The United States Forest Service protects a significant portion of the Path from development, but these protections do not involve the proposed development site.

C. The Proposed Project

The Groups challenge a project nearly a decade in the making. In 2010, Jonah Energy's predecessor proposed a plan to expand its natural gas development in the Valley. The so-called "Normally Pressured Lance Project" would build on Jonah's preexisting lease rights by drilling 3,500 new wells over 10 years. Jonah proposed programmatically drilling test wells across the Project Area to help scout resource-rich land. The test wells would help Jonah decide where to locate larger gas well sites for further development. All told, the Project would dot about 5% of the leased land.

The Bureau evaluated the Project for years. In April 2011, it solicited public comments on the Project to help guide its research priorities and analysis. By July 2017, the Bureau released a draft environmental impact statement for public review and comment. The agency mulled over the public's comments and, in June 2018, published its final EIS. The Bureau released its Record of Decision detailing an anticipated course of action about one month later.

The Bureau's final EIS reasoned through four potential alternative courses of action. It ultimately selected one proposed option, but because its comparative analysis rests at the heart of the EIS, each option deserves some attention. WildEarth Guardians, 870 F.3d at 1226.

The...