Wyoming Outdoor Council v. U.S. Forest Service

Decision Date15 January 1999
Docket NumberNo. 97-5317,97-5317
Citation165 F.3d 43
Parties, 29 Envtl. L. Rep. 20,495 WYOMING OUTDOOR COUNCIL, et al., Appellants, v. UNITED STATES FOREST SERVICE, et al., Appellees.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (No. 97cv00355).

Susan D. Daggett argued the cause for appellants. With her on the briefs were Daniel F. Heilig and Robert B. Wiygul.

M. Alice Thurston, Attorney, United States Department of Justice, argued the cause for the federal appellees. With her on the brief were Lois J. Schiffer, Assistant Attorney General, Robert L. Klarquist and Wells D. Burgess, Attorneys.

Charles L. Kaiser argued the cause for appellees Marathon Oil Company and Rocky Mountain Oil and Gas Association. With him on the briefs were Kirby J. Iler, Charles A. Breer and Ezekiel J. Williams.

Before: WILLIAMS, SENTELLE and GARLAND, Circuit Judges.

Opinion for the court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

Appellants Wyoming Outdoor Council and various other environmental groups (collectively "WOC") appeal from the district court judgment affirming a decision of the United States Forest Service ("Forest Service") authorizing oil and gas leasing of land in the Shoshone National Forest in northwestern Wyoming. WOC contends that the Forest Service violated both (1) its own regulations governing the leasing of land, 36 C.F.R. § 228.102(e), and (2) the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., by authorizing oil and gas leasing without first determining whether an adequate site-specific environmental review had been performed. We conclude that the Forest Service did not violate its own regulations and that WOC's NEPA claim is premature. As a result, we dismiss WOC's NEPA claim as outside our jurisdiction and affirm the district court's judgment.

I. Background
A. Statutory and Regulatory Framework

In 1987, Congress enacted the Federal Onshore Oil and Gas Leasing Reform Act of 1987, Pub. L. No. 100-203, subtitle B, 101 Stat. 1330, codified at 30 U.S.C. § 226(g)-(h), which governs the issuance of oil and gas leases for National Forest Service ("NFS") lands. The Act divides responsibility and authority for the issuing of such leases between the Secretary of Interior, acting through the Bureau of Land Management ("BLM"), and the Secretary of Agriculture, acting through the Forest Service. 30 U.S.C. § 226(h); 43 C.F.R. § 3101.7-2(a). The first responsibility is that of the Forest Service, and it is the exercise of that authority which we review today. The Act provides that the Forest Service shall regulate all surface-disturbing activities on NFS lands. 30 U.S.C. § 226(g). No permit to drill on NFS lands may be granted without analysis and approval by the Forest Service of a plan of operations covering proposed surface-disturbing activities within the lease area. Id.

In 1990, the Forest Service promulgated regulations implementing its responsibilities under the Act. The regulations set up a two-stage process for oil and gas leasing. The first stage is the "leasing analysis" stage, which involves the identification and mapping of areas that might be suitable for leasing. 36 C.F.R. § 228.102(c). The second stage is the "leasing decision for specific lands" stage, during which the Forest Service authorizes the BLM to offer specific lands for leasing. 36 C.F.R. § 228.102(e). The regulations require that authorization of leasing by the Forest Service shall be "subject to" three separate site-specific factual findings made by the Forest Service "[a]t such time as specific lands are being considered for leasing." Id. First, the Forest Service must "verify" that oil and gas leasing of the specific lands being considered has been "adequately addressed in a NEPA document, and is consistent with the Forest land and resource management plan." Id. § 228.102(e)(1). If the Forest Service determines that NEPA has not been adequately addressed or further environmental analysis is needed, "additional environment analysis shall be done before a leasing decision for specific lands will be made." Id. Second, the Forest Service must "ensure" that conditions of surface occupancy identified in § 228.102(c)(1) are properly included as stipulations in any resulting leases. Id. § 228.102(e)(2). Finally, the Forest Service must "determine" that "operations and development could be allowed somewhere on each proposed lease," except where stipulations in the leases will prohibit all surface occupancy. Id. § 228.102(e)(3).

The preamble to the regulations contains language relevant to determining the order in which the steps laid out in the Forest Service regulation are to be performed. The preamble states that the decision to authorize the BLM to offer leases is made "at the conclusion of" the specific lands decision. 55 Fed.Reg. 10,423, 10,428-429 (Mar. 21, 1990). The preamble further states that when specific tracts of land have been identified, "the Forest Service will decide whether to authorize the BLM to offer the lease." Id. at 10,429. Finally, the preamble states that the Forest Service will decide whether to authorize the BLM to offer leases "[o]nce a conclusion is made with respect to each of the three required determinations" outlined in § 228.102(e), specifying that "[t]he only lease(s) that the Bureau of Land Management shall be authorized to offer are those for which the Forest Service has [made the three required findings]." Id. at 10,430.

The Forest Service has interpreted the regulations as being satisfied as long as the three required findings are made at some time before leases are actually issued. Thus, the Service has adopted a procedure whereby the combined "leasing analysis" and "specific lands" decisions are made on the basis of the environmental analysis set forth in 36 C.F.R. § 228.102(c) before the specific lease parcels are identified by the BLM. When deciding whether certain lands are appropriate for leasing, the Forest Service first undertakes a comprehensive oil and gas leasing analysis for forest lands. 36 C.F.R. § 228.102(c). It excludes from consideration lands that are unavailable for leasing under statute or current regulation. Id. § 228.102(c)(1)(iii). On the remaining lands, the Forest Service studies all environmental resources that may be affected by oil and gas activities. Id. § 228.102(c)(4). The Forest Service and the BLM project reasonably foreseeable oil and gas activities that may occur on forest lands. Id. § 228.102(c)(3). The Forest Service identifies leasing alternatives, id. § 228.102(c)(2), and analyzes the potential environmental impacts of oil and gas activities projected for each alternative on all forest resources, id. § 228.102(c)(4). The Forest Service then prepares maps depicting lands closed to oil and gas activities, lands open to those activities, and specific stipulations imposed for lands open to leasing. Id. § 228.102(c)(1). At this point, the Forest Service, without making the three required findings outlined in § 228.102(e), turns the process over to the BLM, which designates lease parcels and forwards those designations to the Forest Service. 43 C.F.R. § 3101.7-1(a). Only then does the Forest Service consider the three requirements of § 228.102(e), since the Forest Service interprets the "subject to" language of § 228.102(e) as merely directing it to make the three findings at any point before leases are actually issued.

When the BLM proposes to sell lease rights to specific parcels, the Forest Service conducts a "verification" procedure pursuant to 36 C.F.R. § 228.102(e). In that procedure, the Service determines whether the three finding requirements are met. If the Service determines that the requirements are met with respect to a specific parcel, it consents to the sale by the BLM. If NEPA has not been adequately addressed or further environmental analysis is otherwise required, the Service does not consent to the lease, but undertakes additional environmental analysis.

Once the Forest Service gives its final consent to the BLM to lease a specific parcel, the BLM itself determines whether any additional stipulations should be attached, and makes its independent decision whether to lease. 43 C.F.R. § 3101.7-2(a), (b). Third parties may protest the inclusion of a parcel in the lease sale and, if the protest is rejected, may appeal the decision to the Interior Board of Land Appeals ("IBLA"). Id. § 3101.7-3(a). The IBLA has held that, where the BLM is relying on the Forest Service's NEPA compliance to discharge its own NEPA responsibilities concerning the decision to offer the lease, the adequacy of that NEPA compliance will be considered on appeal to the IBLA. Colorado Envtl. Coalition, 125 IBLA 210, 220 (1993).

B. Procedural History

On April 11, 1991, the Forest Service issued a notice of intent to prepare an environmental impact statement ("EIS") commencing the environmental review process under NEPA to determine what lands in the Shoshone National Forest could be made available for oil and gas leasing and what conditions could be attached to future leases. 56 Fed.Reg. 14,682 (Apr. 11, 1991). A working group, comprised of representatives from industry, environmental and other interest groups (including WOC), other agencies, local governments, and media, was formed to assist in examining the question. On June 12, 1992, the Forest Service released a draft EIS setting forth a number of alternatives for oil and gas leasing. In December 1992, after receiving a number of public comments in opposition to leasing forest lands, the Forest Service issued a final EIS. In December 1995, the Shoshone National Forest supervisor issued a record of decision ("ROD"), making 950,000 acres of the forest available for oil and gas leasing. In both the EIS and ROD, the Forest Service expressly stated that it was...

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