Wilderness Workshop v. U.S. Bureau of Land Mgmt.

342 F.Supp.3d 1145

WILDERNESS WORKSHOP, Western Colorado Congress, Natural Resources Defense Council, and Sierra Club, Plaintiffs,

v.UNITED STATES BUREAU OF LAND MANAGEMENT, an agency of the U.S. Department of the Interior, Ryan Zinke, in his official capacity as Secretary of the U.S. Department of the Interior, Brian Steed, in his official capacity as Deputy Director of the U.S. Bureau of Land Management, Greg Shoop, in his official capacity as Acting Colorado State Director of the U.S. Bureau of Land Management, and Gloria Tibbetts, in her official capacity as Acting Field Manager of the Colorado River Valley Field Office of the U.S. Bureau of Land Management, Defendants.

Civil Action No. 1:16-cv-01822-LTB

United States District Court, D. Colorado.

Signed October 17, 2018

Laura Helen King, Helena, MT, Peter York Hart, Carbondale, CO, Kyle James Tisdel, Taos, NM, Alison L. Kelly, Washington, DC, Nathaniel Spencer Wood Lawrence, Olympia, WA, Nathan Matthews, Oakland, CA, for Plaintiffs.

Jacob Licht-Steenfat, U.S. Attorney's Office, Denver, CO, William Eron Gerard, Tanya Camille Nesbitt, U.S. Department of Justice, Washington, DC, for Defendants.

Memorandum Opinion and Order

Babcock, Judge

This matter is before me on Plaintiffs' Petition for Review of Agency Action. Plaintiffs seek judicial review of defendant Bureau of Land Management's (referred to as "Defendants" or "BLM") Resource Management Plan concerning land managed under BLM's Colorado River Valley Field Office (see Addendum for a list of acronyms used in this Opinion). The public officers named as defendants in this case have been updated pursuant to Fed. R. Civ. P. 25(d). The matter has been fully briefed (ECF Nos. 24, 27, 28). After carefully analyzing the briefs and the relevant portions of the record, I GRANT in part and DEFER final ruling pending further briefing on remedies in accordance with this Order.

I. BACKGROUND

A. Statutory and regulatory background

1. 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.

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). An agency can choose to perform an Environmental Assessment, or may proceed directly to preparing an Environmental Impact Statement ("EIS"). New Mexico ex rel. Richardson v. Bureau of Land Mgmt. , 565 F.3d 683, 703 n.23 (10th Cir. 2009) (" New Mexico ").

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).

2. The Administrative Procedure Act ("APA")

NEPA provides no private cause of action and thus Plaintiffs' claims arise under the APA. Pls.' Compl., ECF No. 1 at 14; see New Mexico , 565 F.3d at 704. Under the APA, 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.").

"Deficiencies in an EIS that are mere ‘flyspecks’ and do not defeat NEPA's goals of informed decisionmaking and informed public comment will not lead to reversal." Id. (citing cases). As such, the agency action is presumed valid and the burden of proof rests upon those challenging the agency action. Id. (citing Citizens' Comm. to Save Our Canyons v. Krueger , 513 F.3d 1169, 1176 (10th Cir. 2008) ). "So long as the record demonstrates that the agencies in question followed the NEPA procedures ... the court will not second-guess the wisdom of the ultimate decision." Utahns for Better Transp. v. U.S. Dep't of Transp. , 305 F.3d at 1163 (quoting Robertson v. Methow Valley Citizens Council , 490 U.S. at 350, 109 S.Ct. 1835 ).

3. The Federal Land Policy and Management Act ("FLPMA")

In enacting the FLPMA, 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).

In managing public lands, BLM must develop resource management plans ("RMPs"). BioDiversity Conservation All. v. Bureau of Land Mgmt. , 608 F.3d 709, 712 (10th Cir. 2010) (citing 43 U.S.C. § 1712 ; 43 C.F.R. § 1601.0–5(n) ). An RMP 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 ; see Norton v. S. Utah Wilderness All. , 542 U.S. 55, 59, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) ("Generally, a land use plan describes, for a particular area, allowable uses, goals for future condition of the land, and specific next steps."). 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.

a. Oil and gas development under the FLPMA

On public lands, the FLPMA 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) ; see 43 C.F.R. § 3100.0-3. This is done by using a "three-phase decision-making process." W. Energy All. v. Zinke , 877 F.3d 1157, 1161 (10th Cir. 2017) (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 RMPs. 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. Id.

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." Id. 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. 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 permits to drill after parcels of land are leased. 30 U.S.C. § 226(g).

B. Factual background

Within its administrative boundary, BLM's Colorado River Valley Field Office ("CRVFO") has over 2.9 million acres of public and private surface land. Administrative Record ("AR") 184599. At issue here is the administration of 505,200 acres of BLM-managed surface lands and 701,200 acres of BLM-managed federal mineral estate that lie beneath other federal, state, and private surface ownership, apart from National Forest lands. AR 184647–48. These lands within the purview of the CRVFO primarily extend across Eagle, Garfield, Mesa, Pitkin, and Routt counties. AR 184600. Additionally, the Roan Plateau, which is within the purview of the CRVFO, is...