United States District Court, D. Montana, Great Falls Division
MONTANA WILDLIFE FEDERATION; THE WILDERNESS SOCIETY; NATIONAL AUDUBON SOCIETY; NATIONAL WILDLIFE FEDERATION; and MONTANA AUDUBON, Plaintiffs,
RYAN ZINKE, in his official capacity as Secretary of the Interior; DONATO JUDICE, in his official capacity as Montana Bureau of Land Management Deputy State Director; UNITED STATES BUREAU OF LAND MANAGEMENT; and UNITED STATES DEPARTMENT OF THE INTERIOR, Defendants,
Morris United States District Court Judge.
have filed Motions to Reconsider (Docs. 86, 89) this
Court's Order Denying the Federal Defendants' Motion
to Sever and Transfer (Doc. 62). Federal Defendants allege
that new material facts emerged during the parties'
communications and negotiations regarding the Case Management
Order (Doc. 67). This Court granted Federal Defendants'
Motion for Leave to file this Motion for Reconsideration.
Defendants present a narrow basis for the Motion for
Reconsideration: the Court must determine whether the Montana
lease sales challenged in this case applied the Zinke Memo or
the 2018 IM (collectively the “National
Directives”) before making a decision whether to sever
and transfer claims relating to lease sales in Wyoming and
Nevada. Federal Defendants contend that this Court would lack
jurisdiction over the remaining leases at issue if the
Montana lease sales did not apply one of the challenged
National Directives. Defendant-Intervenors Western Energy
Alliance and Wyoming argue also that the National Directives
fail to stand as final agency actions that give rise to an
APA claim. The Court conducted a hearing on these motions on
April 9, 2019.
Montana Wildlife Federation, The Wilderness Society, National
Audubon Society, National Wildlife Federation, and Montana
Audubon (“Plaintiffs”) challenge BLM's
alleged violations of the 2015 Sage Grouse Plans (“2015
Plans”). BLM developed the 2015 Plans to provide
coordinated protections for the greater sage-grouse
populations and habitats range-wide. (Doc. 40 at 3). The 2015
Plans directed BLM to prioritize oil and gas leasing outside
of sage-grouse habitat in order to “limit future
disturbance” and “guide development to lower
conflict areas and as such protect important habitat”
for sage-grouse. (Doc. 19 at ¶ 47). BLM issued the 2016
Instruction Memorandum (“2016 IM”) as a guidance
document to implement the 2015 Plans. The 2016 IM directed
BLM State Offices to follow a specific “prioritization
sequence” for oil and gas leasing. (Doc. 63 at 3).
Zinke ordered review of the 2015 Plans. Secretary Zinke
sought a report that would identify “provisions that
may require modification or rescission.” (Doc. 19 at
¶ 51). The Report in Response to Secretarial Order 3353
(“Report”) outlined short-term and long-term
recommendations as directed in the secretarial order. (Doc.
92-1 at 2). Secretary Zinke produced a memorandum on August
4, 2017, (“Zinke Memo”) that directed BLM offices
“to immediately begin implementing the short- and
long-term recommendations in the Report.” Id.
Report further directed BLM to immediately “modify or
issue new policy on fluid mineral leasing and development,
including the prioritization policy.” Id. The
Zinke Memo included a short-term step to
“clarify” for BLM staff that “leasing is
not restricted in [greater sage-grouse] habitat” and
that this habitat would be open for leasing. (Doc. 19 at
¶¶ 52-54). BLM conducted lease sales in Montana,
Wyoming, and Nevada four months after issuance of the Zinke
Defendants claim that the alleged newly discovered evidence
contradicts a premise central to this Court's transfer
ruling. (Doc. 86 at 2). Federal Defendants contend that the
newly discovered information illustrates that “none of
the Montana leasing decisions” stem from either
document that comprise the National Directives. Id.
at 3 (emphasis in original). Federal Defendants allege that
Plaintiffs advised them that BLM's Montana State Office
did not apply the 2018 IM. (Doc. 67 at 4). Federal Defendants
contend that further inquiry led to the conclusion that three
of the Montana EA's (Miles City, Billings, and Hi-Line)
applied the 2016 IM, while the fourth EA (Butte) did not
apply an IM because the Butte parcels contain no designated
sage-grouse habitat. Id. at 4-5.
Rule of Civil Procedure 59(e) provides a district court an
opportunity to reconsider and amend a previous order. Rule
59(e) offers an “extraordinary remedy, to be used
sparingly in the interests of finality and conservation of
judicial resources.” Carroll v. Nakatani, 342
F.3d 934, 945 (9th Cir. 2003). A motion for reconsideration
will not be granted absent “highly unusual
circumstances” unless: (1) there exists newly
discovered evidence; (2) the district court committed clear
error; or (3) if there has been an intervening change in the
controlling law. Id. (citing Kona Enterprises,
Inc. v. Estate of Bishop, 229 F.3d 877 (9th Cir. 2000).
The party that moves for reconsideration based on newly
discovered evidence is “obliged to show not only that
this evidence was newly discovered or unknown to it until
after the hearing, but also that it could not with reasonable
diligence have discovered and produced such evidence at the
hearing.” Frederick S. Wyle Prof'l Corp. v.
Texaco, Inc., 764 F.2d 604, 609 (9th Cir. 1985).
allege that the National Directives constituted a final
agency action that required an environmental review and
consideration of national management plans. (Doc. 19, at
¶ 4). Section 551(13) of the Administrative Procedure
Act defines a final agency action to include “the whole
or a part of an agency rule, order, license, relief, or the
equivalent thereof, or failure to act.” 5 U.S.C. §
551(13). Courts “apply the finality requirement in a
‘flexible' and ‘pragmatic' way.”
Ciba-Geigy Corp. v. U.S.E.P.A., 801 F.2d 430, 435
(D.C. Cir. 1986). A court must look largely to whether
“the agency's position is
‘definitive'” and whether the agency
“possesses a ‘direct and immediate . . . effect
on the day-to-day business' of the parties challenging
the action.” Id. at 436 (citing FTC v.
Standard Oil Co., 449 U.S. 232, 239 (1980)) (emphasis
added). Plaintiffs argue that the Zinke Memo, one piece of
the challenged National Directives, served as the actual
final agency action that triggered a “direct and
immediate” effect in BLM policy. (Doc. 92 at 33-44)
direct and immediate impact analysis assists the Court in
determining “whether the agency's position is
merely tentative or whether the agency views its deliberative
process as sufficiently final to demand compliance with its
announced position.” Ciba-Geigy Corp., 801 F.2d at 435.
No. finality exists if the position proves tentative.
Judicial review of a tentative position would intrude into an
agency's decision-making process. Id. The moment
an agency “publicly articulates an unequivocal
position, however, and expects regulated entities to alter
their primary conduct to conform to that position, ”
then that agency “voluntarily relinquished the benefit
of postponed judicial review.” Id.
contend that the Zinke Memo itself represents a final action.
The 2015 Plans originally directed BLM to prioritize oil and
gas leasing outside of sage-grouse habitat in order to
“limit future disturbance” and “guide
development to lower conflict areas and as such protect
important habitat” for sage-grouse. (Doc. 19, at ¶
47). Plaintiffs point out that Secretary Zinke directed
federal and state agencies to identify provisions in the 2015
Plans and associated policies that “may require
modification or recession . . . in order to give appropriate
weight to the value of energy and other development of public
lands . . . and to be consistent with . . . American Energy
Independence.” Office of the Secretary of the ...