DINÉ CITIZENS AGAINST RUINING OUR ENVIRONMENT; SAN JUAN CITIZENS ALLIANCE; WILDEARTH GUARDIANS; NATURAL RESOURCES DEFENSE COUNCIL, Plaintiffs - Appellees,
SALLY JEWELL, in her official capacity as Secretary of the United States Department of the Interior; UNITED STATES BUREAU OF LAND MANAGEMENT, an agency within the United States Department of the Interior; NEIL KORNZE, in his official capacity as Director of the United States Bureau of Land Management, Defendants-Appellees, and WPX ENERGY PRODUCTION, LLC; ENCANA OIL & GAS (USA), INC.; BP AMERICA PRODUCTION COMPANY; CONOCOPHILLIPS COMPANY; BURLINGTON RESOURCES OIL & GAS COMPANY LP; AMERICAN PETROLEUM INSTITUTE; ANSCHUTZ EXPLORATION CORPORATION, Defendants Intervenors -Appellees.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
MEXICO(D.C. No. 1:15-CV-00209-JB-SCY)
J. Tisdel, Western Environmental Law Center, Taos, New Mexico
(Samantha Ruscavage-Barz, WildEarth Guardians, Santa Fe, New
Mexico, with him on the briefs), for Plaintiffs-Appellants.
A. Polachek, Attorney, Environmental and Natural Resources
Division, U.S. Department of Justice (John C. Cruden,
Assistant Attorney General, Environmental and Natural
Resources Division; Clare M. Boronow, Attorney, Environmental
and Natural Resources Division, U.S. Department of Justice;
and Michael Williams, Office of the Solicitor, U.S.
Department of the Interior, of counsel, with him on the
briefs), Washington, D.C., for Defendants-Appellees.
Hadassah M. Reimer of Holland & Hart LLP, Jackson,
Wyoming (Stephen G. Masciocchi and John F. Shepherd of
Holland & Hart LLP, Denver, Colorado, and Bradford Berge
of Holland & Hart LLP, Santa Fe, New Mexico, with her on
the briefs) for Defendants Intervenors-Appellees.
Indall and Joseph E. Manges of Comeau Maldegen Templeman
& Indall LLP, Santa Fe, New Mexico; Steven J. Rosenbaum
of Covington & Burling LLP, Washington, D.C., and Andrew
D. Schau of Covington & Burling LLP, New York, New York,
for Defendant Intervenor-Appellee American Petroleum
KELLY, McKAY, and LUCERO, Circuit Judges.
appeal the district court's denial of their request for a
preliminary injunction to prevent the drilling of certain oil
and gas wells in the Mancos Shale formation of the San Juan
Basin in New Mexico. The district court concluded that
Plaintiffs had failed to satisfy three of the four elements
required to obtain a preliminary injunction: (1) Plaintiffs
had not demonstrated a substantial likelihood of success on
the merits of their claims; (2) the balance of harms weighed
against Plaintiffs; and (3) Plaintiffs failed to show that
the public interest favored an injunction. Plaintiffs
challenge each of these conclusions on appeal.
Juan Basin is a large geographic region in the southwestern
United States, including part of New Mexico. Drilling for oil
and gas has occurred in the Basin for more than sixty years,
and the Basin is currently one of the most prolific sources
of natural gas in the country. The Basin includes both public
and private lands. Many of the public lands and resources
fall under the jurisdiction of the Bureau of Land
Management's Farmington Field Office in New Mexico, which
manages these lands and resources under its published
Resource Management Plan.
2000, the BLM initiated the process of revising its existing
RMP, which had been published in 1988. As part of this
process, the BLM contracted with the New Mexico Institute of
Mining and Geology to develop a "reasonably foreseeable
development scenario, " or RFDS, to predict the
foreseeable oil and gas development likely to occur over the
next twenty years. Based on historic production data and
available geologic and engineering evidence, the RFDS
estimated that 9, 970 new oil and gas wells would be drilled
on federally managed lands in the New Mexico portion of the
San Juan Basin during this time period. Of these wells, the
RFDS estimated that more than forty percent would be
"Dakota, Mancos" gas wells-wells that could produce
gas from both the Mancos geologic horizon and the Dakota
geologic horizon that lies below it. (Appellees'
Supplemental App. at 37.) The RFDS estimated that only 180
new oil wells would be drilled in the Mancos Shale, due to
the fact that most reservoirs in the Mancos Shale were
approaching depletion under then-current technologies, but it
noted that "there is excellent potential for the Mancos
to be further evaluated." (Joint App. at 182.)
2003, the BLM issued its Proposed Resource Management Plan
and Final Environmental Impact Statement (PRMP/FEIS). In this
document, the BLM referred to the predictions and analysis
contained in the RFDS in order to assess four proposed
alternatives for managing federal lands in the San Juan
Basin, including the "balanced approach" the agency
ultimately decided to adopt. (Id. at 499.) Under
this balanced approach, the BLM analyzed the cumulative
impacts of an estimated 9, 942 new wells in the San Juan
Basin-approximately the same number predicted in the 2001
RFDS-by looking at, for instance, the likely air quality
impacts from the drilling and operation of this many new
wells in the region. The PRMP/FEIS did not discuss specific
sites or approve any individual wells, although it assumed
the majority of new wells would be drilled in the high
development area in the northen part of the managed area. The
BLM issued its final RMP, adopting the Alternative D balanced
approach, in December 2003.
this RMP generally allows for drilling in the San Juan Basin,
a new well may not be drilled unless the operator first
receives specific approval of its drilling plan through the
submission of an application for a permit to drill, or APD,
to the BLM. When the agency receives an APD, it reviews the
planned drilling activity and prepares an environmental
assessment of the environmental impacts of the proposed
drilling, after which the agency may approve the APD as
submitted, approve it with appropriate modifications or
conditions, or deny it. In preparing this environmental
assessment, the agency may incorporate by reference the
general but more comprehensive environmental analysis
included within its published RMP and focus the APD's
environmental assessment "on the issues specific to the
[proposed drilling]." 40 C.F.R. § 1502.20. This
process is generally referred to as tiering. See id.
in about 2014, the BLM began receiving more APDs than
anticipated for oil wells in the Mancos Shale. At the time
the RMP was issued, oil and gas in the San Juan Basin were
generally produced through hydraulic fracturing of vertical
oil wells. However, subsequent technological advances have
made it economical for oil and gas operators in the San Juan
Basin to drill horizontal wells and conduct multi-stage
fracturing, which enables them to tap into oil and gas
reserves that are not readily accessible through traditional
vertical drilling techniques and produce four times as much
oil and gas per well as they could have produced from a
single vertical well. Between 2010 and 2015, the BLM approved
approximately 265 APDs for drilling in the Mancos Shale. In
its environmental assessment of each APD or set of related
APDs, the agency reviewed the site-specific and cumulative
impacts likely to arise from the proposed drilling. In its
assessment of some of these impacts, and particularly in its
discussion of the cumulative impacts, the BLM referred to its
broader but more comprehensive environmental analysis in the
2014, the BLM prepared a new RFDS to better predict the
Mancos Shale's potential for oil and gas development. The
agency is now working on an RMP amendment to account for the
estimated additional 1, 930 oil wells and 2, 000 gas wells in
the Mancos Shale.
March 2015, Plaintiffs filed this lawsuit under the National
Environmental Policy Act, challenging 260 APDs in the Mancos
Shale. Plaintiffs then moved for a preliminary injunction to
prevent drilling on approved wells while this litigation is
ongoing. The district court denied this motion in a
101-page decision, holding that Plaintiffs were not likely to
succeed on the merits of their claims and that
Plaintiffs' potential harm was outweighed by the economic
harms which the operators and the public would suffer if
drilling was enjoined. This appeal followed.
review the district court denial of a preliminary injunction
for an abuse of discretion. Wilderness Workshop v.
BLM, 531 F.3d 1220, 1223 (10th Cir. 2008). "An
abuse of discretion occurs only when the trial court bases
its decision on an erroneous conclusion of law or where there
is no rational basis in the evidence for the ruling."
Id. at 1224 (internal quotation marks omitted).
"Our review of the district court's exercise of
discretion is narrow, and the merits may be considered on
appeal only insofar as they bear on the issue of judicial
discretion." Gen. Motors Corp. v. Urban Gorilla,
LLC, 500 F.3d 1222, 1226 (10th Cir. 2007) (internal
quotation marks, ellipses, and citation omitted).
order to receive a preliminary injunction, the plaintiff must
establish the following factors: (1) a substantial likelihood
of prevailing on the merits; (2) irreparable harm unless the
injunction is issued; (3) that the threatened injury
outweighs the harm that the preliminary injunction may cause
the opposing party; and (4) that the injunction, if issued,
will not adversely affect the public interest."
Davis v. Mineta, 302 F.3d 1104, 1111 (10th Cir.
2002) (internal quotation marks and brackets omitted).
"Because a preliminary injunction is an extraordinary
remedy, the ...