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Western Organization of Resource Councils v. U.S. Bureau of Land Management

United States District Court, D. Montana, Great Falls Division

January 24, 2017

WESTERN ORGANIZATION OF RESOURCE COUNCILS, et al . Plaintiffs,
v.
U.S. BUREAU OF LAND MANAGEMENT, an agency within the U.S. Department of the Interior, et al. Defendants.

          OPINION AND ORDER

          BRIAN MORRIS UNITED STATES DISTRICT COURT JUDGE

         I. Background

         Plaintiffs 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.

         Plaintiffs 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.

         Federal 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. § 1404(a). Id.

         A. The Federal Land Policy and Management Act and RMPs

         The 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. § 1601.0-5(n)(1)-(2).

         The BLM 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).

         RMP 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. Id.

         B. The RMPs

         Defendants 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.

Id.

         The ROD 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.

         Efforts 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.)

         The 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.

         The 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.)

         C. Plaintiffs' Claims

         Plaintiffs 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.

         Second, 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.

         Third, 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.

         Fourth, 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.

         Fifth, 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 ...


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