Montana Wilderness Ass'n v. Fry

• Decision Date: 12 January 2006
• Docket Number: No. CV 00-39-GF-DWM.,CV 00-39-GF-DWM.
• Citation: 408 F.Supp.2d 1032
• Court: U.S. District Court — District of Montana
• Parties: MONTANA WILDERNESS ASSOCIATION, a non-profit corporation, and CURLEY YOUPEE, an enrolled member of the Fort Peck Tribes, individually, Plaintiff, v. Tom FRY, Acting Director, U.S. Bureau of Land Management; Mat Millenbach, Director, Montana-Dakotas State Office, U.S. Bureau of Land Management; Jamie Rappaport Clark, Director, U.S. Fish & Wildlife Service; U.S. Bureau of Land Management; U.S. Fish & Wildlife Service; and Macum Energy, Inc., a Montana corporation, Defendants.

Page 1032

408 F.Supp.2d 1032

MONTANA WILDERNESS ASSOCIATION, a non-profit corporation, and CURLEY YOUPEE, an enrolled member of the Fort Peck Tribes, individually, Plaintiff, v. Tom FRY, Acting Director, U.S. Bureau of Land Management; Mat Millenbach, Director, Montana-Dakotas State Office, U.S. Bureau of Land Management; Jamie Rappaport Clark, Director, U.S. Fish & Wildlife Service; U.S. Bureau of Land Management; U.S. Fish & Wildlife Service; and Macum Energy, Inc., a Montana corporation, Defendants.

No. CV 00-39-GF-DWM.

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

January 12, 2006.

Michael P. Adams, William P. Pendley, D. Andrew Wight, Mountain States Legal Foundation, Lakewood, CO, Alan L. Joscelyn, Gough, Shanahan, Johnson & Waterman, Helena, MT, for Defendant Macum Energy, Inc.

George F. Darragh, Jr., Office of the U.S. Attorney, Great Falls, MT, for Defendant U.S. Bureau of Land Management, United States Fish and Wildlife Service.

Cathy J. Lewis, Ugrin, Alexander, Zadick & Higgins, Great Falls, MT, for Plaintiff Montana Wilderness Association.

Dennis J. Tighe, Davis, Hatley, Haffeman & Tighe, PC, Great Falls, MT, for

Plaintiff Montana Wilderness Association, Curley Youpee.

ORDER

MOLLOY, Chief Judge.

I. Introduction

By Order dated March 31, 2004, I found the Bureau of Land Management ("BLM") in violation of National Environmental Policy Act ("NEPA"), the Endangered Species Act ("ESA"), and the National Historic Preservation Act ("NHPA") in its sale of three leases to Macum Energy and its grant of a pipeline right-of-way to Macum. This order concerns the appropriate remedy for these violations. An evidentiary hearing with respect to the remedy was held on January 14, 2005.¹ After listening to a day of evidence on the equities and public interests at play in this matter, in my view the three Macum Energy leases at issue should remain suspended pending full compliance with the directives set forth in the March 31, 2004 Order. The pipeline shall likewise remain shutdown pending the BLM's compliance with the order on summary judgment.

II. Discussion

A. The Proper Scope of Injunctive Relief

"The proper remedy for substantial procedural violations of NEPA and the ESA is an injunction." Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1230 (9th Cir.1988). In issuing an injunction, the district court must balance the equities between the parties and give due regard to the public interest. Idaho Watersheds Project v. Hahn, 307 F.3d 815, 833 (9th Cir.2002). A third party's potential financial damages from an injunction generally do not outweigh potential harm to the environment. National Parks & Cons. Ass'n, 241 F.3d at 738. If the question of injunctive relief raises important factual issues, the scope of the injunction is to be determined by the district court. National Parks & conservation Assn. v. Babbitt, 241 F.3d 722, 738 (9th Cir.2001) (quoting Alaska Wilderness Recreation & Tourism Assn. v. Morrison, 67 F.3d 723, 732 (9th Cir.1995)).

The district court's equitable powers are broad, and it is within the court's authority to fashion a remedy that fits the particular facts of the case before it. Moreover, a district court has the power to fashion a remedy that ensures full compliance with the law. In this case there are two options with respect to the leases. One is to permanently suspend the leases until the NEPA process is complete. The other more drastic option is to void the leases and the right-of-way. See Kettle Range Conservation Group v. U.S. Bureau of Land Management, 150 F.3d 1083 (9th Cir.1998).

The Ninth Circuit affirmed the rescission of water contracts in a case in which the Bureau of Reclamation issued the 40-year contracts without first complying with its obligations under the ESA. Natural Resources Defense Council v. Houston, 146 F.3d 1118 (9th Cir.1998). It did so even though a "no-jeopardy" Biological Opinion was issued during the pendency of the litigation. "The process, which was not observed here, itself offers valuable protections against the risk of a substantive violation and ensures that environmental concerns will be properly factored into the decision-making process as intended by Congress." Id. at 1128-29. In affirming the remedy of contract rescission, the court stated, "Where contracts have already been entered into, the opportunity to `choose' has been eliminated — all that remains is the limited ability to make the path chosen as palatable as possible. Therefore, an injunction would not serve any purpose if the contracts are not invalidated." Id. at 1129.

With respect to the pipeline right-of-way, the choice for injunctive relief is between 1) shutting down the pipeline pending compliance with NEPA, ESA and NHPA; 2) shutting down the pipeline permanently but leaving it in place so as to avoid the adverse environmental impacts of removal; and 3) requiring that the pipeline be removed.

B. Macum's Leases

1. Evidence Presented at the Hearing

Plaintiffs put on a great deal of evidence of the potential impacts of gas activities by showing other sites where erosion, weed infestation, and flooding had occurred. Timothy Faber, a long-time user of the area, showed photographs and testified to the changes he has seen over the last few decades as gas leasing has increased in the Bullwhacker area. He discussed his perception of the impacts of gas development on wildlife, including increased scarcity of certain species, and on the physical environment, including increased roads, unauthorized off-road vehicle access, erosion, and invasive weeds. Faber testified that his enjoyment of the natural area had lessened considerably with the increase in gas development.

Plaintiffs' experts also testified to the harms to wildlife that follow such development. Dr. Janice Thomson, a landscape scientist, discussed the fragmentation of wildlife habitat that can result from human activities in a landscape. Dr. Thomson showed maps that demonstrate that the Monument area is among the least roaded areas in Montana and discussed the effects of roads on wildlife. Dr. Thomson testified that roads are an inevitable result of gas development; they have been identified in the scientific literature as having a extensive impact on wildlife, including habitat fragmentation, noise, dust, traffic, facilitation of other disturbing human activities, and introduction of weeds, among other things. Dr. Thomson outlined specific impacts on mule deer, elk, bighorn sheep, and pronghorn, all species found in the Monument. She concluded that the best alternative to protect wildlife in the Monument would be to disallow new roads and close some existing roads. On cross-examination, BLM's counsel emphasized that Macum's leases/sites are much smaller than the ones in the Wyoming study which concluded that gas development is detrimental to wildlife in the area.

Plaintiffs' expert Dr. Kyron Kunkel, a wildlife biologist, testified to similar negative impacts related to gas leasing. His position was that wildlife habitat in the Monument area is in a delicate condition as it stands, and any further development or impacts would have negative consequences for wildlife. Dr. Kunkel used maps to demonstrate areas of great concern for wildlife species and the proximity of those areas to the lease areas at issue here. Dr. Kunkel concluded the best way to protect the various species of the Monument was not to develop the Macum leases and to prevent other further development.

Dr. Peter Morton, a resource economist for the Wilderness Society, testified that preserving wildlands for other than resource extraction is an increasingly valuable use of the land. Dr. Morton showed graphs demonstrating that amenities other than oil and gas development were a significant part of Montana's rural economy. Dr. Morton testified to the high value Montanans put on wildlife, and his final conclusion was that the economic and environmental benefits of protecting the Bullwhacker area would likely outweigh the economic benefits of gas development. He concluded that these wells would probably not significantly improve the economy of Blaine County.

Finally, Plaintiffs' expert Thomas Schneider, an experienced petroleum engineer, testified to what Plaintiffs see as the "marginal" potential productivity of these leases, thereby suggesting their possible financial and economic benefits are far out-weighed by their possible harms.

The BLM presented the testimony of Martin Ott, State Director of the BLM for Montana and the Dakotas. Mr. Ott discussed the procedures the BLM has undertaken to comply with this court's orders and environmental laws. He claimed that recision of the leases would be contrary to the will of the people because the monument, designation intended for existing gas leases to continue operating. The declaration, according to Mr. Ott, "clearly spoke to the multiple use nature of the monument." Mr. Ott also thought the country's need for energy, as expressed in President Bush's energy plan, tips the balance in favor of gas development. There is also revenue from the leases, and he suggested all of these things must be balanced against the wildlife, riparian, and other non-economic values. Despite his clear preference for issuing the leases, Mr. Ott expressed conviction that the BLM would still be able to give the leases their requisite "hard look." Mr. Ott's testimony appeared to express a belief that suspending the leases pending the NEPA process would merely be a hiccup, and the leasing would go forward eventually, reaping the benefits of the gas production. In his view, rescinding the leases forecloses the public's opportunity to reap those benefits. The Court questioned Mr. Ott on his answers, because Mr. Ott's statement that a FONSI would follow the public comment period suggested that he had already decided on his intended course, and that the public comment was irrelevant. Upon further questioning, however,...