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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

March 26, 2018

U.S. BUREAU OF LAND MANAGEMENT, an agency within the U.S. Department of the Interior, et al. Defendants.


          Brian Morris United States District Court Judge.


         The Court held a hearing on the parties' four cross-motions for summary judgment (Docs. 72; 78; 84; 87) on November 2, 2017. (Doc. 108.)

         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”) filed this action on March 15, 2016. (Doc. 1.) Plaintiffs filed their instant motion for summary judgment on July 14, 2017. (Doc. 72.)

         Defendants 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.)

         Plaintiffs 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.)

         Plaintiffs 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.)

         Federal 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.)


         BLM 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.)

         The ROD 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.

         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. (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.)

         A. RMP Development under FLPMA

         The 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).

         BLM 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. § 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 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.

         B. Resource Development Under the MLA

         An RMP “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.

         After 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.

         BLM 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).


         A court 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 (1986).

         A. NEPA

         The 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.

         The 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 environment.” Id.

         B. APA

         The 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).

         APA 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.

         IV. STANDING

         To 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).

         Courts 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. 2015).

         Plaintiffs 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.

         A. Legal Status of the Land

         Federal 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.

         The 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.

         Plaintiffs 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 at 1516.

         The 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.

         B. Traceability to RMPs versus Implementation Decisions

         Federal 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.

         The 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 “superfluous.” Id.

         This 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 Congress.” Id.

         C. Sufficiency of Declarants' Use and Enjoyment

         Federal 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.

         The 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. at 1143.

         The 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 ...

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