United States District Court, D. Colorado
CITIZENS FOR A HEALTHY COMMUNITY; HIGH COUNTRY CONSERVATION ADVOCATES; CENTER FOR BIOLOGICAL DIVERSITY; WILDEARTH GUARDIANS; and WILDERNESS WORKSHOP; Plaintiffs,
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, and SG Interests I, Ltd. and SG Interests VII, Ltd., Intervenor-Defendants.
MEMORANDUM OPINION AND ORDER
T. BABCOCK, JUDGE.
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
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.
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.
The National Environmental Policy Act
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 (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).
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.
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 Va
ley Citizens Council, 490 U.S. 332, 349
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 A
l. 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).
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 A
l. 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)).
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
A l., 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. §
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.
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).
The Administrative Procedure Act
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
(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).
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
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.” Coal. of Concerned Citizens To
Make Art Smart v. Fed. Transit Admin. of U.S. Dep't of
Transportation, 843 F.3d 886, 902 (10th Cir. 2016)
(quoting Wyo. v. U.S. Dep't of Agric., 661 F.3d
1209, 1256-57 (10th Cir. 2011)). As such, the agency action
is presumed valid and the burden of proof rests upon those
challenging the agency action. New Mexico, 565 F.3d
at 704 (quoting 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., 305 F.3d at 1163 (quoting
Robertson v. Methow Va ley Citizens
Council, 490 U.S. at 350).
Bull Mountain Master Development Plan
Bull Mountain Unit (the “Unit”) is located in the
Colorado River basin, approximately 30 miles northeast of the
town of Paonia and is bisected by State Highway 133.
UNC0027453 (I use the numbering system consistent with the
Administrative Record). The Unit consists of: 440 acres of
federal surface lands underlain by a mineral estate
administered by BLM; 12, 900 acres of split-estate lands
consisting of private surface and BLM-administered minerals;
and 6, 330 acres of fee land consisting of private surface
and private minerals regulated by the Colorado Oil and Gas
Conservation Commission. UNC0027470.
and 2009, BLM sought input for a master development plan
(“MDP”) concerning 2, 300 acres of land owned by
Intervenor-Defendants within the Unit. UNC0055338, 0055341.
An MDP typically provides infrastructural information
regarding a planned cluster of wells and associated
facilities adjacent to an oil and gas unit or field.
UNC0027451. BLM completed a preliminary EA, but then elected
to complete an EIS regarding the Unit's MDP. UNC0055344,
0078547. In January 2015, BLM published a draft EIS with an
opportunity for public comment. UNC0005710-11. In July 2016,
BLM published a final EIS. UNC0042302.
final EIS, BLM considered four alternatives: alternative A
was a no-action alternative and alternatives B, C, and D
contained a development of 146 new gas wells and four new
water disposal wells. UNC0027457. Alternatives B, C, and D
contained 36, 35, and 33 new well pads, respectively.
Id. BLM selected alternative D as its preferred
alternative. Id. It assumed the life of the project
would be at least 50 years. UNC0027501. In October 2017, BLM
approved the MDP in a Record of Decision. UNC0042509. This
Record of Decision additionally approved an application for
permit to drill (“APD”) by Intervenor-Defendants.
UNC0042453. BLM notes that since the commencement of this
suit, it has approved: (1) three other APDs in the same well
pad location as the original APD; (2) two lateral extensions
for an existing well bore on a different well pad; and (3)
two APDs on well pads located on private surface lands.
Defs.' Resp., ECF No. 50 at 5.
25-well Project addressed six APDs-three from
Intervenor-Defendants and three from another company.
UNC0097956. The 25-well Project is situated between Paonia
and Carbondale. UNC0097964. It involves the construction of
25 natural gas wells on four new well pads and one existing
well pad and the approval of 19 additional APDs.
UNC0097956-57. One proposed well pad occurs on split estate
lands with federal minerals underneath private surface land.
UNC0097944. Three other well pads are located on federally
managed lands. Id. The fifth well pad is located on
private surface lands over private mineral estate, but is
planned to bore horizontally into adjacent federal mineral
March 2015, BLM and USFS announced their intention to
complete an EA for the 25-well Project and invited public
comment. UNC0079341-42. In June, the agencies issued a
preliminary EA with an invitation for additional public
comment. UNC0079346. In September, the agencies issued a
final EA and a draft FONSI. UNC0097938, 0098284. In December
2015, both agencies signed FONSIs and accepted the EA.
UNC0098295, 0098306, 0098311.
are non-profit organizations who focus on environmental
issues. ECF No. 14 at 6-10. Plaintiffs challenge the NEPA
review process performed by Defendants regarding the
Unit's MPD and the 25-well Project, alleging generally
that Defendants “failed to consider a reasonable range
of alternatives” and “failed to take a hard look
at the direct, indirect, and cumulative impacts to people and
the environment.” Pls.' Br., ECF No. 47 at 11, 15.
Consideration of Alternatives
argue that Defendants considered an insufficiently narrow
range of alternatives in violation of NEPA. ECF No. 47 at 11.
They contend that Defendants should have considered a
“phased development alternative . . . which would
involve clustering drilling geographically to maintain open
areas and allowing concentrated development that proceeds in
stages rather than all at once.” Id. at 12.
This proposed alternative would involve clustering oil and
gas development in certain areas, then moving to other areas
and using interim surface reclamation measures as a way to
preserve open space for wildlife and recreation. Id.
respond that Plaintiffs: (1) misunderstand the design
features accompanying alternatives C and D; and (2) ignore
Defendants' explanation of why it did not further
consider an extended development timeframe. ECF No. 50 at 8.
Defendants note that in alternative C, they considered a
“progressive development plan” which contained
“timing limitations that would allow for drilling and
construction in phased timeframes.” Id. at
11-12. This plan considered voluntary seasonal timing
limitations for private mineral development and included
methods to monitor wells that would reduce disturbances to
wildlife. Id. at 12. Intervenor-Defendants add that
Plaintiffs have not offered a sufficient explanation of what
a phased development plan would contain.
Intervenor-Defs.' Br., ECF No. 51 at 9-10.
exploration of alternatives is the “heart” of an
EIS, where the agency must rigorously explore and objectively
evaluate all reasonable alternatives to the proposed action.
New Mexico, 565 F.3d at 708 (citing 40 C.F.R. §
1502.14). In an EA, the agency must provide a “brief
discussion” of alternatives. 40 C.F.R. 1508.9(b);
see also Greater Ye lowstone
Coal. v. Flowers, 359 F.3d 1257, 1278-79 (10th Cir.
2004) (a less extensive search for reasonable alternatives is
required under NEPA when an agency makes an informed decision
that the environmental impact of proposed action will be
NEPA ‘does not require agencies to analyze the
environmental consequences of alternatives it has in good
faith rejected as too remote, speculative, or impractical or
ineffective,' it does require the development of
‘information sufficient to permit a reasoned choice of
alternatives as far as environmental aspects are
concerned.'” New Mexico, 565 F.3d at 708
(quoting Colo. Envtl. Coal. v. Dombeck, 185 F.3d
1162, 1174 (10th Cir. 1999). As such, an agency need only
evaluate alternatives that are significantly distinguishable
from the considered alternatives. Id. at 708-09
(quoting Westlands Water Dist. v. U.S. Dep't of the
Interior, 376 F.3d 853, 868 (9th Cir. 2004)).
sufficiency of an agency's analysis of alternatives in an
EIS is measured against two guideposts using a “rule of
reason.” Id. at 709. First, an alternative is
reasonable only if it falls within the agency's statutory
mandate. Id. (citing Westlands, 376 F.3d at
866). “Second, reasonableness is judged with reference
to an agency's objectives for a particular
project.” Id. (citing cases). Further, if
“the action subject to NEPA review is triggered by a
proposal or application from a private party, it is
appropriate for the agency to give substantial weight to the
goals and objectives of that private actor.”
Citizens' Comm. to Save Our Canyons v. U.S. Forest
Serv., 297 F.3d 1012, 1030 (10th Cir. 2002) (citing
cases). However, this does not “allow an agency to
define the objectives so narrowly as to preclude a reasonable
consideration of alternatives. Id. (citing Davis
v. Mineta, 302 F.3d 1104 (10th Cir. 2002)).
EIS and EA, Defendants did not consider an alternative
explicitly named “phased development, ” but they
provided aspects of Plaintiffs' suggestions such that
they were not significantly distinguishable from the
considered alternatives. See New Mexico, 565F.3d at
708-09. Alternative C was a modification of
Intervenor-Defendants' proposal. UNC0042479; ECF No. 50
at 10. It “was developed by modifying the geographic
information system  model to minimize surface disturbance
by putting greater emphasis on soil types and proximity to
existing roads and collocating roads and pipelines.”
UNC0042479. “This, in turn, would reduce the miles of
roads and pipelines needed to service the pad sites . . .
.” Id. Further, seasonal winter timing
limitations “would limit drilling and construction over
private and federal minerals to no ...