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 AMENDED ORDER
Morris United States District Court Judge.
Court held a hearing on the parties' four cross-motions
for summary judgment (Docs. 72; 78; 84; 87) on November 2,
2017. (Doc. 108.)
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”) filed this action on March 15,
2016. (Doc. 1.) Plaintiffs filed their instant motion for
summary judgment on July 14, 2017. (Doc. 72.)
United States Bureau of Land Management (“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”) filed a cross-motion for
summary judgment on August 11, 2017. (Doc. 78.)
Intervenor-Defendants Peabody Caballo Mining, LLC and BTU
Western Resources, Inc. filed a cross-motion for partial
summary judgment on August 18, 2017. (Doc. 84.)
Intervenor-Defendant Cloud Peak Energy filed a cross-motion
for summary judgment on August 18, 2017. (Doc. 87.)
have raised six claims under the National Environmental
Policy Act, 42 U.S.C. §§ 4321-4370h, and the
Administrative Procedures Act, 5 U.S.C. §§ 701-706.
(Doc. 1 at 3.) Plaintiffs challenge Federal Defendants'
approval of Resource Management Plans (“RMPs”)
for two adjacent field offices in the Powder River Basin.
Id. Federal Defendants approved the Buffalo RMP and
the Miles City RMP, and six others not at issue here, by the
same Record of Decision (“ROD”), dated September
21, 2015. (Doc. 23-1 at 29.)
allege that Federal Defendants acted arbitrarily and
capriciously in approving the RMPs when BLM failed to
consider the following matters: 1) alternatives that would
reduce the amount of coal available for leasing in each field
office; 2) measures that would reduce methane emissions from
resource development; 3) direct, indirect, and cumulative
impacts of the fossil fuel development under the plans. (Doc.
72-1 at 11.)
Defendants ask the Court to grant summary judgment in their
favor. (Doc. 78.) The Defendant-Intervenors also have offered
arguments as to why Plaintiffs' claims should fail.
(Docs. 84; 87.)
drafted the Buffalo RMP and Miles City RMP to address
conditions that had changed within the planning areas since
the most recent RMPs had been approved in 1985 for Buffalo
and Miles City, and again in 1996 for Miles City. (Doc. 80 at
3, 6, 19, 22.) These changing conditions included
conservation of the Greater Sage-Grouse. The Approved RMPs
for revisions to the eight sub-regions, including Buffalo and
Miles City, represent, in fact “full scale resource
management plan revisions” and “are not limited
to [Greater Sage-Grouse] habitat management.” (Record
of Decision, Doc. 23-1 at 15.)
addresses sub-regions that cover millions of acres of
federally owned and managed lands in parts of Colorado,
Montana, North Dakota, South Dakota, and Wyoming. (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. (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. (Doc. 23-5 at 8.)
RMP Development under FLPMA
Federal Land Policy and Management Act of 1976
(“FLPMA”) directs the Secretary of the United
States DOI, through BLM, to “manage the public lands
under principles of multiple use and sustained yield.”
43 U.S.C. § 1732(a). 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).
should “coordinate the land use, inventory planning,
and management activities” for lands covered by a RMP.
43 U.S.C. § 1712(c)(9). BLM should coordinate these
activities “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.” Id. 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). 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.
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 the preparation of an
Environmental Impact Statement (“EIS”) under
NEPA. Id. The EIS and RMP shall be “published
in a single document” whenever possible. Id.
Resource Development Under the MLA
“guide[s] and control[s] future management.” 43
C.F.R. § 1601.0- 2. An RMP may identify lands available
for leasing, define resource use, and levels of production.
43 C.F.R. § 1601.0-5(n)(1)-(2). Before federal coal,
oil, or gas resources may be developed, however, the Mineral
Leasing Act (“MLA”), 30 U.S.C. §§ 181,
et seq., prescribes additional procedures. Coal remains
subject to a different leasing process than that required for
oil and gas development.
BLM identifies areas suitable for coal leasing in an RMP or
other programmatic document, the agency then identifies
leases for sale. See 43 C.F.R. subpt. 3425. Coal
leases and coal lease modifications trigger the preparation
of an EIS of the proposed lease area. 43 C.F.R. §§
3425.2, 3425.3, 3432.3(c). A lessee seeking to develop leased
resources must submit a plan for operation and reclamation
for approval by the Secretary of Interior. 30 U.S.C. §
207(c). The Secretary of Interior bases approval on a
recommendation from the Office of Surface Mining Reclamation
and Enforcement. The Office of Surface Mining Reclamation and
Enforcement must comply with NEPA in evaluating the plan. 30
C.F.R. § 746.13.
offers oil and gas leases for sale consistent with the RMP.
43 C.F.R. § 1610.5-3(a). A lessee seeking to develop oil
or gas must submit an Application for Permit to Drill (APD)
at least thirty days before commencement of operations. 43
C.F.R. § 3162.3-1(c). “NEPA applies at all stages
of the process.” N. Alaska Envtl. Ctr. v.
Kempthorne, 457 F.3d 969, 977 (9th Cir. 2006).
should grant summary judgment where the movant demonstrates
that no genuine dispute exists “as to any material
fact” and the movant is “entitled to judgment as
a matter of law.” Fed.R.Civ.P. 56(a). This Court will
grant summary judgment where the documentary evidence
produced by the parties permits only one conclusion.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
National Environmental Policy Act (“NEPA”)
requires federal agencies to “take a hard look”
at the “environmental consequences” of their
decision-making. Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 350 (1989) (internal citations
omitted). The statute “does not mandate particular
results.” Id. NEPA instead “prescribes
the necessary process” that agencies must follow to
identify and evaluate “adverse environmental effects of
the proposed action.” Id. Such effects may be
direct, “indirect, ” or “cumulative.”
40 C.F.R. § 1502.16.
NEPA process requires preparation of an EIS for “major
Federal actions” that “significantly”
affect the “quality of the human environment.” 42
U.S.C. § 4332(2)(C); 40 C.F.R. § 1508.11. An EIS
must provide a “full and fair discussion of significant
environmental impacts.” 40 C.F.R. § 1502.1. This
discussion should “inform decisionmakers and the public
of the reasonable alternatives which would avoid or minimize
adverse impacts or enhance the quality of the human
Court reviews NEPA compliance through the Administrative
Procedures Act (“APA”). League of Wilderness
Defs.-Blue Mountains Biodiversity Project v. U.S. Forest
Serv., 549 F.3d 1211, 1215 (9th Cir. 2008). The APA
instructs a reviewing court to “hold unlawful and set
aside” agency action deemed “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A).
review requires the Court to consider whether an agency based
a particular decision on “consideration of the relevant
factors.” Citizens to Pres. Overton Park, Inc. v.
Volpe, 401 U.S. 402, 416 (1971) (citations omitted).
Such inquiry must be “thorough, ” “probing,
” and “in-depth.” Id. at 415. The
Court must defer to the judgment of the agency, and reverse a
decision as arbitrary and capricious only where “a
clear error of judgment” has occurred. League of
Wilderness Defs., 549 F.3d at 1215. This “clear
error of judgment” may entail the following scenarios:
1) the agency's reliance on factors “Congress did
not intend [for] it to consider;” 2) the agency's
failure to “consider an important aspect of the
problem;” 3) the agency's explanation “runs
counter to the evidence” or “is so implausible
that it could not be ascribed to a difference in view or the
product of agency expertise.” Id.
establish standing, Plaintiffs must demonstrate that:
“(a) its members would otherwise have standing to sue
in their own right; (b) the interests it seeks to protect are
germane to the organization's purposes; and (c) neither
the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.”
Ecological Rights Found. v Pac. Lumber Co., 230 F.3d
1141, 1147 (9th Cir. 2000) (quoting Hunt v. Washington
State Apple Advertising Comm'n, 432 U.S. 333, 343
(1977)). Individual members possess standing if they can
demonstrate three elements: 1) injury-in-fact that is
concrete and particularized, and actual or imminent; 2)
causation, such that the injury is fairly traceable to the
challenged action; and 3) redressability. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
relax the normal standards for redressability and immediacy
where a plaintiff seeks to enforce a procedural requirement.
Lujan, 504 U.S. at 572 n.7. Injury-in-fact can be
established by an environmental plaintiff who demonstrates
“an aesthetic or recreational interest in a particular
place, or animal, or plant species and that that interest is
impaired by defendant's conduct.” Ecological
Rights Found., 230 F.3d at 1147. The Ninth Circuit has
determined that “[e]nvironmental plaintiffs adequately
allege injury in fact” where they attest to their use
of the affected area and “are persons for whom the
aesthetic and recreational values of the area will be
lessened by the challenged activity.” WildEarth
Guardians v. U.S.D.A., 795 F.3d 1148, 1154 (9th Cir.
have provided the Court with five declarations sworn by
members of their respective groups who use areas open to
development under the Buffalo RMP and the Miles City RMP.
(Docs. 72-3; 72-4; 72-5; 72-6; 72-7; 94-1.) These declarants
attest that they live, farm, ranch, and recreate on and near
BLM land in the Miles City and Buffalo Field Office areas.
Legal Status of the Land
Defendants argue broadly that Plaintiffs fairly cannot trace
their alleged injuries to the RMPs. Federal Defendants allege
that the RMPs do not change the legal status of the land.
(Doc. 79 at 16-17.) In other words, the same land open to
energy development under previous RMPs remains open today.
Id. Federal Defendants further argue that the prior
status of the land also impedes the redressability
requirement. Id. at 17. Federal defendants point out
that an order by the Court to vacate the new RMPs simply
would restore the prior RMPs. Id. These previous
RMPs also allow for resource development. Id.
Ninth Circuit has recognized that NEPA “define[d] [an]
injury” and conferred “the right to have agencies
consider all reasonable alternatives before making a decision
affecting the environment.” Idaho Conservation
League v. Mumma, 956 F.2d 1508, 1514 (9th Cir. 1992).
Federal Defendants' argument incorrectly attempts to
characterize Plaintiffs' claimed injury as an injury
suffered by virtue of the status of the land alone. This
argument suggests by extension that no modern agency decision
to maintain the status quo can give rise to a fairly
traceable, redressable injury.
challenge the sufficiency of the process underlying Federal
Defendants' decision to maintain the land's
eligibility for resource development. The outcome of that
process represents a decision not to foreclose additional
land to development. Plaintiffs' alleged injury stems
from Federal Defendants' decision to keep these lands
open to potential development. This outcome represents the
type of injury “contemplated by Congress” in
drafting NEPA. Idaho Conservation League, 956 F.2d
same reasoning applies to Federal Defendants' argument
regarding the lack of redressability. Plaintiffs ask first
that this Court vacate and set aside Federal Defendants'
actions. Plaintiffs further ask the Court to enjoin leasing
of coal, oil, and gas until Federal Defendants have complied
with NEPA. Such an injunction would redress the alleged harm.
An injunction would require NEPA compliance before any future
resource development takes place on the lands encompassed by
the Buffalo RMP and the Miles City RMP.
Traceability to RMPs versus Implementation Decisions
Defendants also argue broadly that Plaintiffs' concern
over implementation-level lease sales demonstrate that
Plaintiffs' alleged injuries cannot fairly be traced to
the programmatic RMPs. (Doc. 79 at 17-18.) Federal Defendants
contend that these implementation-level decisions constitute
final agency action subject to APA challenge for want of
compliance with NEPA or another statute. Id. at 18.
A challenge to an implementation-level decision, according to
Federal Defendants, would afford “direct” redress
for Plaintiffs' grievances rather than upset broad,
programmatic-level management decisions that have been
“years in the making” and affect a “vast
array” of interests. Id. Federal Defendants
suggest that RMPs represent instead a general
“statement of priorities” that do not prescribe
further specific actions. Id. at 19.
Ninth Circuit has rejected the argument that future statutory
safeguards against an alleged injury preclude a challenge to
a programmatic decision that makes such injury possible.
Idaho Conservation League, 956 F.2d at 1516. The
Ninth Circuit in Idaho Conservation League
determined that environmental plaintiffs possessed standing
to challenge the sufficiency of an EIS underlying the United
States Forest Service's decision to recommend against
wilderness designation. Id. The Court acknowledged
that the “concrete effect[s]” of the EIS and
recommendation “might be seriously mitigated” at
the implementation level by NEPA's requirements.
Id. The EIS and recommendation “made possible
development, ” however, which constituted
“injuries that we must deem immediate, not
speculative.” Id. A contrary finding would
assume Congress's procedural safeguards
“useless” and the wilderness designation itself
Court sees no reason that future NEPA obligations should bar
Plaintiffs' claim. The RMPs represent “important
decision[s]” similar to the agency recommendation
considered in Idaho Conservation League.
Id. Federal Defendants' approval of the RMPs
“ma[k]e possible” Plaintiffs' alleged
injuries. Id. Such injuries can be traced to the
current agency action “in the sense contemplated by
Sufficiency of Declarants' Use and Enjoyment
Defendants argue that the declarations submitted by
Plaintiffs regarding their members use and enjoyment of the
affected lands lacks specificity in both declarants'
descriptions of their use of the land and plans to return.
(Doc. 79 at 19.) Federal Defendants rely on Lujan,
where the United States Supreme Court held that a group of
plaintiffs lacked standing to challenge the Secretary of the
Interior's determination that a section of the Endangered
Species Act did not apply to federally-funded actions taken
outside the United States. 504 U.S. at 578. The Supreme Court
discussed the affidavits of two people who “had
visited” certain international project areas and
“intend[ed]” to return. Id. at 563. The
Supreme Court deemed these affidavits insufficient to support
standing because the affiants lacked a concrete or specific
plan to return. Id. at 564. These “some
day” intentions to return could not support an
“actual or imminent” injury. Id.
Ninth Circuit has distinguished Lujan in
articulating a “flexible approach” to
injury-in-fact in environmental cases. Ecological Rights
Found., 230 F.3d at 1150. This “flexible
approach” to injury-in-fact in environmental cases
requires a showing of a connection to the relevant area
“sufficient to make credible the contention” that
the declarant “really has or will suffer in his or her
degree of aesthetic or recreational satisfaction”
should the area suffer environmental harm. Id. at
1149. The Ninth Circuit evaluated the sufficiency of
declarations submitted by members of environmental groups to
establish standing to bring an action against a logging
company for violations of the Clean Water Act. Id.
Ninth Circuit first reviewed the declarations in
Lujan. The affiants in Lujan lived
“huge distances” from the foreign development
projects located “halfway around the world” that
they challenged. Id. at 1148, n.7. The
Lujan affiants lacked a definite plan to return and
“any tangible, continuing connection to any particular
location affected by the challenged decision.”
Id. at ...