United States District Court, D. Montana, Great Falls Division
WESTERN ORGANIZATION OF RESOURCE COUNCILS, et al . Plaintiffs,
U.S. BUREAU OF LAND MANAGEMENT, an agency within the U.S. Department of the Interior, et al. Defendants.
OPINION AND ORDER
MORRIS UNITED STATES DISTRICT COURT JUDGE
Western Organization of Resource Councils, Montana
Environmental Information Center, Powder River Basin Resource
Council, Northern Plains Resource Council, Sierra Club, and
Natural Resources Defense Council (collectively
“Plaintiffs”) have filed six claims under the
National Environmental Policy Act (NEPA), 42 U.S.C.
§§ 4321-4370h, and the Administrative Procedures
Act (APA), 5 U.S.C. §§ 701-706. (Doc. 1 at 3; Doc.
24 at 7.) Plaintiffs filed these claims against the United
States Bureau of Land Management (the “BLM”),
Sally Jewell in her official capacity as Secretary of the
United States Department of the Interior (“DOI”),
Neil Kornze in his official capacity as Director of the BLM,
and Janice Schneider in her capacity as Assistant Secretary
of Land and Minerals Management of DOI (collectively
“Federal Defendants”). Id.
challenge Federal Defendants' approval of Resource
Management Plans (“RMPs”) for two adjacent field
offices in the Powder River Basin: the Miles City Field
Office in Montana and the Buffalo Field Office in Wyoming.
Id. Federal Defendants in Washington, D.C. approved
these RMPs, and 10 others, through a single Record of
Decision (“ROD”). Id.
Defendants moved the Court to dismiss Plaintiffs' Buffalo
RMP claims for improper venue pursuant to Rule 12(b)(3) of
the Federal Rules of Civil Procedure and 28 U.S.C. §
1406(a). (Doc. 22.) Federal Defendants request alternatively
that the Court sever the Buffalo RMP claims and transfer
those claims to the District of Wyoming pursuant to Rule 21
of the Federal Rules of Civil Procedure and 28 U.S.C. §
The Federal Land Policy and Management Act and RMPs
Federal Land Policy and Management Act of 1976 directs the
Secretary of the United States DOI, through the BLM, to
“manage the public lands under principles of multiple
use and sustained yield.” 43 U.S.C. § 1732(a). The
BLM accomplishes this directive by developing, maintaining,
and revising RMPs. 43 U.S.C. § 1712(a); 43 C.F.R. §
1601.0-5(n). RMPs “guide and control future management
actions.” 43 C.F.R. §1601.0-2. RMPs establish
“[l]and areas for limited, restricted or exclusive
use” and determine “[a]llowable resource uses
(either singly or in combination) and related levels of
production or use to be maintained.” 43 C.F.R. §
should “coordinate the land use, inventory planning,
and management activities” for lands covered by a RMP
“with the land use planning and management programs of
other federal departments and agencies of the States and
local governments within which the lands are located.”
43 U.S.C. § 1712(c)(9). The BLM obtains this federal,
state, and local cooperation in the RMP process by inviting
relevant state and local governments and federally recognized
Indian tribes to participate as “cooperating
agencies.” 43 C.F.R. § 1610.3-1(b). The BLM
provides cooperating agencies with “opportunity for
review, advice, and suggestion on issues and topics that may
affect or influence other agency or other government
programs.” 43 C.F.R. § 1610.3-1(c).
approval represents a major federal action that significantly
affects the quality of the human environment. 43 C.F.R.
§ 1601.0-6. RMP approval triggers an Environmental
Impact Statement (“EIS”) under NEPA. Id.
The EIS and RMP shall be “published in a single
document, ” whenever possible. Id. National
level policy and procedure provides guidance for RMP
development. 43 C.F.R. § 1601.0-4(a). Field Managers
prepare RMPs, revisions and amendments to RMPs, and the
related EISs. 43 C.F.R. § 1601.0-4(c). State Directors
approve the documents produced by the Field Managers.
Kornze and Schneider signed a single ROD that approved land
use plans for the Rocky Mountain Region Greater Sage-Grouse
Conservation Strategy on September 21, 2015. (Record of
Decision, Doc. 23-1 at 29.) A ROD is a “concise public
record” of an agency's decision-making process
after completing its environmental analysis. 40 C.F.R. §
1505.2. A ROD must contain the following information:
(a) State what the decision was.
(b) Identify all alternatives considered by the agency in
reaching its decision, specifying the alternative or
alternatives which were considered to be environmentally
preferable. An agency may discuss preferences among
alternatives based on relevant factors including economic and
technical considerations and agency statutory missions. An
agency shall identify and discuss all such factors including
any essential considerations of national policy which were
balanced by the agency in making its decision and state how
those considerations entered into its decision.
(c) State whether all practicable means to avoid or minimize
environmental harm from the alternative selected have been
adopted, and if not, why they were not. A monitoring and
enforcement program shall be adopted and summarized where
applicable for any mitigation.
represents the final agency action which is subject to
judicial review. See 5 U.S.C. § 704. The ROD
approved RMP revisions for eight sub-regions and approved RMP
amendments for four sub-regions. Id. at 3. An RMP
revision affects the “entire plan or major portions of
the plan.” 43 C.F.R. § 1610.5- 6. RMP revisions
must comply with all the requirements for approving an
original RMP. Id. RMP amendments rewrite a more
limited part of an existing RMP. 43 C.F.R. § 1610.5-5.
to conserve the Greater Sage-Grouse prompted the revisions
and amendments approved under the ROD. The Approved RMPs for
revisions to the eight sub-regions, including Buffalo and
Miles City, in fact represent “full scale resource
management plan revisions” and “are not limited
to [Greater Sage-Grouse] habitat management.” (Record
of Decision, Doc. 23-1 at 15.)
sub-regions addressed by the ROD cover millions of acres of
federally managed lands in parts of Colorado, Montana, North
Dakota, South Dakota, and Wyoming. (Record of Decision, Doc.
23-1 at 11-14.) “Each sub-region prepared its own
separate EIS and conducted its own planning with input from
local cooperators, stakeholders, and members of the
public.” Id. at 11.
Buffalo RMP revision covers about 7.4 million acres of
federal, state, and private land in north-central Wyoming,
along with 4.8 million acres of BLM-administered federal
mineral estate. (Buffalo Approved RMP, Doc. 23-2 at 13.) The
Miles City RMP covers 2.75 million acres of BLM-administered
surface lands and 10.6 million acres of BLM-administered
mineral acres in seventeen eastern Montana counties. (Miles
City Approved RMP, Doc. 23-5 at 8.)
assert six causes of action against Federal Defendants.
First, Plaintiffs assert that Federal Defendants
“failed to consider any reasonable alternatives that
would allow for a lesser amount of coal leasing” in
both EISs for the Miles City and Buffalo RMPs. (Doc. 1 at
34.) Plaintiffs allege that “the existence of
reasonable but unexamined alternatives renders a NEPA
analysis inadequate.” Id.
Plaintiffs assert that Federal Defendants violated NEPA by
“failing to consider an alternative requiring
reasonable and cost effective mitigation measures to reduce
methane and other air emissions from oil and gas development,
” in both EISs for the Miles City and Buffalo RMPs.
Id. at 36.
Plaintiffs allege that Federal Defendants “failed
entirely to address the foreseeable indirect impacts from
downstream combustion of coal, oil, and gas resources leased
and developed in the planning areas” in both EISs for
the Miles City and Buffalo RMPs, in violation of NEPA.
Id. at 37-38.
Plaintiffs assert that the EISs for the Miles City and
Buffalo RMPs “explicitly omit any discussion of the
breadth and scale of the impacts” of greenhouse gas
emissions under the various alternatives. Id. at 39.
Plaintiffs further allege that Federal Defendants in both
EISs, “failed to employ a social cost of carbon
protocol, or any other tools, for assessing the impact of the
climate pollution caused by the production and combustion of
the federal coal, or oil and gas resources made available for
leasing pursuant to the RMPs” in violation of NEPA.
Id. at 40.
Plaintiffs allege that Federal Defendants “failed to
take a hard look at the environmental impacts of the methane
pollution that is projected under the plans, ” in the
EISs for both the Miles City and Buffalo RMPs. Id.
at 41. Plaintiffs assert that Federal Defendants failed
“to properly quantify the magnitude of methane
pollution from coal, oil, and gas emissions sources in the
planning areas, and by using an outdated global warming