Northern Cheyenne Tribe v. Norton, 05-35408.
| Citation | 503 F.3d 836 |
| Decision Date | 11 September 2007 |
| Docket Number | No. 05-35408.,No. 05-35413.,No. 05-35540.,No. 05-35586.,No. 05-35587.,05-35408.,05-35413.,05-35540.,05-35586.,05-35587. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Parties | The NORTHERN CHEYENNE TRIBE, a federally recognized Indian tribe; Native Action, a Montana non-profit corporation, Plaintiffs-Appellants, v. Gale NORTON, Secretary of the Interior; Kathleen Clarke, Director, Bureau of Land Management; Martin Ott, Montana State Director, Bureau of Land Management, Defendants-Appellees, Fidelity Exploration and Production Company; Anadarko Petroleum Corporation; Devon Energy Corporation; Powder River Gas LLC; Pinnacle Gas Resources, Inc., Defendants-Intervenors-Appellees. Northern Plains Resource Council, Plaintiff-Appellant, v. Gale Norton, Secretary of the Interior; Kathleen Clarke, Director, Bureau of Land Management; Martin Ott, Montana State Director, Bureau of Land Management; United States Bureau of Land Management, Defendants-Appellees, Fidelity Exploration and Production Company; Anadarko Petroleum Corporation; Devon Energy Corporation; Powder River Gas LLC; Pinnacle Gas Resources, Inc., Defendants-Intervenors-Appellees. The Northern Cheyenne Tribe, a federally recognized Indian tribe; Native Action, a Montana non-profit corporation; Northern Plains Resource Council, Plaintiffs-Appellees, v. Gale Norton, Secretary of the Interior; Kathleen Clarke, Director, Bureau of Land Management; Martin Ott, Montana State Director, Bureau of Land Management; United States Bureau of Land Management, Defendants-Appellants, and Fidelity Exploration and Production Company; Anadarko Petroleum Corporation; Devon Energy Corporation; Powder River Gas LLC; Pinnacle Gas Resources, Inc., Defendants-Intervenors. The Northern Cheyenne Tribe, a federally recognized Indian tribe; Native Action, a Montana non-profit corporation; Northern Plains Resource Council, Plaintiffs-Appellees, v. Gale Norton, Secretary of the Interior; Kathleen Clarke, Director, Bureau of Land Management; Martin Ott, Montana State Director, Bureau of Land Management; United States Bureau of Land Management, Defendants, and Fidelity Exploration and Production Company, Defendants-Intervenors-Appellant. The Northern Cheyenne Tribe, a federally recognized Indian tribe; Native Action, a Montana non-profit corporation; Northern Plains Resource Council, Plaintiffs-Appellees, v. Gale Norton, Secretary of the Interior; Kathleen Clarke, Director, Bureau of Land Management; Martin Ott, Montana State Director, Bureau of Land Management; United States Bureau of Land Management, Defendants, Fidelity Exploration and Production Company, Defendant-Intervenor, and Anadarko Petroleum Corporation; Devon Energy Corporation; Pinnacle Gas Resources, Inc., Defendants-Intervenors-Appellants. |
John B. Arum (argued) and Brian C. Gruber (briefed), Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, WA, and Joe A. Rodriguez (briefed), Law Offices of Joe A. Rodriguez, Lame Deer, MT, for appellants Northern Cheyenne Tribe and Native Action, Inc.
John T. Stahr, U.S. Department of Justice, Environmental & Natural Resources, Washington, DC, for the appellees.
John C. Martin, Patton Boggs LLP, Washington, DC, for intervenors-appellees Pinnacle Gas Resources, Inc., Devon Energy Corporation, and Anadarko Petroleum Corporation.
Jon Metropoulos, Gough, Shanahan, Johnson & Waterman, Helena, MT, for intervenor-appellee Fidelity Exploration & Production Company.
Jason S. Ritchie (briefed), Holland & Hart LLP, Billings, MT, for amicus curiae Nance Petroleum Corporation.
Jay Jerde (briefed), Deputy Attorney General, Wyoming Attorney General's Office, Cheyenne, WY, for amicus curiae State of Wyoming.
Nancy L. Rohde (briefed), Big Horn County Attorney's Office, Hardin, MT, for amicus curiae Big Horn County, Montana.
Appeal from the United States District Court for the District of Montana; Richard W. Anderson, Magistrate Judge, Presiding. D.C. Nos. CV-03-00078-RWA, CV-03-00069-RWA, CV-03-00069-RWA, NV-03-00078-RWA, CV-03-00069-RWA, CV-03-00078-RWA, CV-03-00069-RWA.
Before: MARY M. SCHROEDER, Chief Circuit Judge, ARTHUR L. ALARCÓN and ANDREW J. KLEINFELD, Circuit Judges.
Opinion by Judge KLEINFELD; Dissent by Chief Judge SCHROEDER.
This appeal challenges an injunction limiting but not entirely prohibiting coal bed methane development while the Bureau of Land Management expands an environmental impact statement.1
The Powder River Basin in Montana and Wyoming is the largest coal deposit in the United States and among the largest in the world. For over a century, it has been developed into ranches, farms, and coal mines. Farmers and ranchers generally have surface rights to the land involved in this case, but not hell-to-heaven rights. The federal government owns sub-surface mineral rights to the land at issue.
Besides its value for grass to feed cattle, farms, and coal mines, the land is thought to cover vast amount of methane. This coal bed methane is a natural gas generated by coal deposits and trapped in coal seams by groundwater. Coal bed methane is extracted by pumping the groundwater out of the land and into rivers. As the water is removed, the hydraulic pressure on the gas is relieved, so the gas percolates and is piped to the surface, where it can be recompressed for shipping. The process poses three potential environmental problems: the aesthetic harm from visibility of wells, pipes, and compressors on the ranches and farms; the pollution of the rivers and streams into which the groundwater is pumped; and the lowering of the water table, so that ranchers' and farmers' (and expanding suburban developers') wells run dry unless they are drilled deeper.
The federal government owns most of the subsurface mineral rights in the Powder River Basin. The Bureau of Land Management administers mineral resources owned by the federal government. It leases these resources for development under the Mineral Leasing Act2 and manages them according to resource management plans developed under the Federal Land Policy and Management Act.3
For more than twenty years, the Bureau of Land Management has had resource management plans for the Powder River Resource Area. In 1994, BLM prepared an environmental impact statement analyzing development of oil and gas resources. On the basis of this environmental impact statement, it amended the resource management plan to permit development of conventional oil and gas resources and limited exploration and development of coal bed methane resources. In 1997, BLM began selling leases to develop oil and gas resources and leaseholders began exploring coal bed methane resources. The Powder River Basin covers about 14 million acres. The resource area covers about 8 million acres. About 4 million acres are currently leased.
Exploration revealed extensive coal bed methane deposits. As natural gas grew scarcer and more expensive, and energy independence became an increasingly significant government priority, the coal bed methane attracted more governmental interest in development. In 2002, BLM, together with the Montana Board of Oil and Gas Conservation and the Montana Department of Environmental Quality, issued a draft environmental impact statement analyzing development of coal bed methane resources and made it available for public review and comment.
The draft environmental impact statement analyzed five alternatives in detail: (A) "No Action (Existing Management)"; (B) "Emphasize Soil, Water, Air, Vegetation, Wildlife, and Cultural Resources"; (C) "Emphasize CBM Development"; (D) "Encourage Exploration and Development While Maintaining Existing Land Uses"; (E) "Preferred Alternative" that would "facilitate CBM exploration and development while sustaining resource and social values, and existing land uses." The "Preferred Alternative" would not permit operators to drill more than one well per 640 acres without a project plan developed in consultation with the affected surface owners and permitting agencies.
This draft environmental impact statement was challenged by the federal Environmental Protection Agency, the Montana Department of Fish, Wildlife, and Parks, an advocacy group calling itself the Northern Plains Resource Council, and the Northern Cheyenne Tribe of Indians. The commenters suggested that BLM should study an additional alternative, which they called "phased development." The final environment impact statement responds to this suggestion partly by saying that many of the points at issue are addressed in the environmental impact statement. The primary response, though, is that "existing oil and gas leases" approved pursuant to a 1994 resource management plan included the rights to explore and develop coal bed methane, and the time for challenging the 1994 decision was passed.
The district court concluded that the final environmental impact statement was generally sufficient under NEPA, but improperly failed to consider the "phased development" alternative proposed by the commenters. Accordingly, it partially enjoined coal bed methane development:
Having considered the arguments, as well as the evidence and testimony presented, the Court finds that BLM's proposal presents a balanced, equitable approach to CBM development during the pendency of the SEIS. In making this finding, the Court bears in mind that, in its opinion on the merits, the EIS generally passed muster under NEPA, with the exception of the failure to consider a phased development alternative. The plan designed by BLM is tailored to address this deficiency by allowing a type of phased development to proceed at the same time BLM analyzes the efficacy of such an alternative. The proposal will assist BLM in choosing between alternatives by permitting the agency to study the effects of phased CBM development while...
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